j-^o^-y^ moie, ip
'Rr^A lKfrH743il A2-Mt
The
NORTH CAROLINA
REGISTER
IN TfflS ISSUE
€\
P
COHi
TlTUl 11 (/J
PROPOSED RULES
EnviFomnent, Health, and Natural Resources
Insurance
Labor
Landscape Architects, Board of
Plumbing, Heating and Fire Sprinkler Contractors
Practicing Psychologists, Board of
State Health Plan Purchasing Alliance Board
Transportation
RRC OBJECTIONS
CONTESTED CASE DECISIONS
ISSUE DATE: AprU 15, 1994
Volume 9 • Issue 2 • Pages 76 - 122
TNFORMATTON ABOUT THE NORTH CAROLINA REGISTER AND ADMTNTSTRATTVR CODE
NORTH CAROLINA REGISTER
TEMPORARY RULES
TTie North Carolina Register is published twice a month and
contains information relating to agency, executive, legislative and
judicial actions required by or affecting Chapter 150B of the
General Statutes. All proposed administrative rules and notices of
public hearings filed under G.S. 150B-21.2 must be published in
the Register. The Register will typically comprise approximately
fifty pages per issue of legal text.
State law requires that a copy of each issue be provided free of
charge to each county in the state and to various state officials and
institutions.
The North Carolina Register is available by yearly subscription
at a cost of one hundred and five dollars (S105.00) for 24 issues.
Individual issues may be purchased for eight dollars (S8.00).
Requests for subscription to the North Carolina Register should
be directed to the Office of Administrative Hearings,
P. 0. Drawer 27447, Raleigh, N. C. 27611-7447.
Under certain emergency conditions, agencies may issue
temporary rules. Within 24 hours of submission to OAH, the
Codifier of Rules must review the agency's written statement of
findings of need for the temporary rule pursuant to the provisions in
G.S. 150B-21.1. If the Codifier determines that the findings meet
the criteria in G.S. 150B-21.1, the rule is entered into the NCAC. If
the Codifier determines that the fmdings do not meet the criteria,
the rule is returned to the agency. The agency may supplement its
findings and resubmit the temporary rule for an additional review
or the agency may respond that it will remain with its initial
position. The Codifier, thereafter, will enter the rule into the
NCAC. A temporary rule becomes effective either when the
Codifier of Rules enters the rule in the Code or on the sixth
business day after the agency resubmits the rule without change.
The temporary rule is in effect for the period specified in the rule or
180 days, whichever is less. An agency adopting a temporary rule
must begin rule-making procedures on the permanent rule at the
same time the temporary rule is filed with the Codifier.
ADOPTION AMENDMENT, AND REPEAL OF
RULES
NORTH CAROLINA ADMINISTRATIVE CODE
The following is a generalized statement of the procedures to be
followed for an agency to adopt, amend, or repeal a rule. For the
specific statutory authority, please consult Article 2A of Chapter
150B of the General Statutes.
Any agency intending to adopt, amend, or repeal a rule must
first publish notice of the proposed action in the North Carolina
Register. The notice must include the time and place of the public
hearing (or instructions on how a member of the public may request
a hearing); a statement of procedure for public comments; the text
of the proposed rule or the statement of subject matter; the reason
for the proposed action; a reference to the statutory authority for the
action and the proposed effective date.
Unless a specific statute provides otherwise, at least 15 days
must elapse following publication of the notice in the North
Carolina Register before the agency may conduct the public
hearing and at least 30 days must elapse before the agency can take
action on the proposed rule. An agency may not adopt a rule tliat
differs substantially from the proposed form published as part of
the public notice, until the adopted version has been published in
the North Carolina Register for an additional 30 day comment
period.
When final action is taken, the promulgating agency must file
the rule with the Rules Review Commission (RRC). After approval
by RRC, the adopted rule is filed with the Office of Administrative
Hearings (OAH).
A rule or amended rule generally becomes effective 5 business
days after the rule is filed with the Office of Administrative
Hearings for publication in the North Carolina Administrative Code
(NCAC).
Proposed action on rules may be withdrawn by the promulgating
agency at any time before final action is taken by the agency or
before filing with OAH for publication in the NCAC.
The North Carolina Administrative Code (NCAC) is a
compilation and index of the administrative rules of 25 state
agencies and 38 occupational licensing boards. The NCAC
comprises approximately 15,000 letter size, single spaced pages of
material of which approximately 35% of is changed annually.
Compilation and publication of the NCAC is mandated by G.S.
150B-21.18.
The Code is divided into Titles and Chapters. Each state agency
is assigned a separate title which is further broken down by
chapters. Title 21 is designated for occupational licensing boards.
The NCAC is available in two formats.
(1) Single pages may be obtained at a minimum cost of
two dollars and 50 cents (32.50) for 10 pages or less,
plus fifteen cents (SO. 15) per each additional page.
(2) The full publication consists of 53 volumes, totaling in
excess of 15,000 pages. It is supplemented monthly
with replacement pages. A one year subscription to the
full publication including supplements can be
purchased for seven hundred and fifty dollars
(S750.00). Individual volumes may also be purchased
with supplement service. Renewal subscriptions for
supplements to the initial publication are available.
Requests for pages of rules or volumes of the NCAC should be
directed to the Office of Administrative Hearings.
CITATION TO THE NORTH CAROLINA
REGISTER
The North Carolina Register is cited by volume, issue, page
number and date. 1:1 NCR 101-201, April 1, 1986 refers to
Volume 1, Issue 1, pages 101 through 201 of the North Carolina
Register issued on April 1, 1986.
FOR INFORMATION CONTACT: Office of
Administrative Hearings, ATTN: Rules Division, P.O.
Drawer 27447, Raleigh, North Carolina 27611-7447, (919)
733-2678.
NORTH
CAROLINA
REGISTER
Office of Administrative Hearings
P. O. Drawer 27447
Raleigh, North Carolina 27611-7447
(919) 733-2678
Julian Mann III,
Director
James R. Scarcella St.,
Deputy Director
Molly Masich,
Director ofAPA Services
Staff:
Ruby Creech,
Publications Coordinator
Teresa Kilpatrick,
Editorial Assistant
Jean Shirley,
Editorial Assistant
ISSUE CONTENTS
I. PROPOSED RULES
Environment, Health, and
Natural Resources
DEM/ Air Quality 80
Environmental Management .... 81
Wildlife Resources Commission . . 84
Independent Agencies
State Health Plan Purchasing
Alliance Board 99
Insurance
Multiple Employer Welfare
Arrangements 76
Special Services Division 76
Labor
OSHA 77
Licensing Boards
Landscape Architects, Board of . . 95
Plumbing, Heating & Fire
Sprinkler Contractors, Board of . 96
Practicing Psychologists, Board of 97
Transportation
Highways, Division of 85
Motor Vehicles, Division of ... . 89
n. RRC OBJECTIONS 102
in. CONTESTED CASE DECISIONS
Index to ALJ Decisions 105
Text of Selected Decisions
93 EDC 0234 108
93 CPS0801 114
IV. CUMULATIVE INDEX 121
This publication is printed on permanent,
acid-free paper in compliance with
as. 125-11.13.
NORTH CAROLINA REGISTER
Publication Schedule
(April 1994 - January 1995)
Volume
and
Issue
Number
Issue
Date
Last Day
for
Filing
Last Day
for Elec-
tronic
Filing
Earliest
Date for
Public
Hearing
15 days
from
notice
* End of
Required
Comment
Penod
30 days
from
notice
Last Day
to Submit
toRRC
** Earliest
Effective
Date
9:1
04/04/94
03/11/94
03/18/94
04/19/94
05/04/94
05/20/94
07/01/94
9:2
04/15/94
03/24/94
03/31/94
05/02/94
05/16/94
05/20/94
07/01/94
9:3
05/02/94
04/11/94
04/18/94
05/17/94
06/01/94
06/20/94
08/01/94
9:4
05/16/94
04/25/94
05/02/94
05/31/94
06/15/94
06/20/94
08/01/94
9:5
06/01/94
05/10/94
05/17/94
06/16/94
07/01/94
07/20/94
09/01/94
9:6
06/15/94
05/24/94
06/01/94
06/30/94
07/15/94
07/20/94
09/01/94
9:7
07/01/94
06/10/94
06/17/94
07/18/94
08/01/94
08/22/94
10/01/94
9:8
07/15/94
06/23/94
06/30/94
08/01/94
08/15/94
08/22/94
10/01/94
9:9
08/01/94
07/11/94
07/18/94
08/16/94
08/31/94
09/20/94
11/01/94
9:10
08/15/94
07/25/94
08/01/94
08/30/94
09/14/94
09/20/94
11/01/94
9:11
09/01/94
08/11/94
08/18/94
09/16/94
10/03/94
10/20/94
12/01/94
9:12
09/15/94
08/24/94
08/31/94
09/30/94
10/17/94
10/20/94
12/01/94
9:13
10/03/94
09/12/94
09/19/94
10/18/94
11/02/94
11/21/94
01/01/95
9:14
10/14/94
09/23/94
09/30/94
10/31/94
11/14/94
11/21/94
01/01/95
9:15
11/01/94
10/11/94
10/18/94
11/16/94
12/01/94
12/20/94
02/01/95
9:16
11/15/94
10/24/94
10/31/94
11/30/94
12/15/94
12/20/94
02/01/95
9:17
12/01/94
11/07/94
11/15/94
12/16/94
01/03/95
01/20/95
03/01/95
9:18
12/15/94
11/22/94
12/01/94
12/30/94
01/17/95
01/20/95
03/01/95
9:19
01/03/95
12/08/94
12/15/94
01/18/95
02/02/95
02/20/95
04/01/95
9:20
01/17/95
12/21/94
12/30/94
02/01/95
02/16/95
02/20/95
04/01/95
This table is published as a public service, and the computation of time periods are not to be deemed binding
or controlling. Time is computed according to 26 NCAC 2B .0103 and the Rules of Civil Procedure, Rule
6.
* An agency must accept comments for at least 30 days after the proposed text is published or until the date
of any public hearing, whichever is longer. See G.S. 150B-21. 2(f) for adoption procedures.
** The "Earliest Effective Date " is computed assuming that the agency follows the publication schedule above,
that the Rules Review Commission approves the rule at the next calendar month meeting after submission, and
that RRC delivers the rule to the Codifier of Rules five (5) business days before the 1st business day of the next
caleruiar month.
Revised 03/94
PROPOSED RULES
TITLE 11 - DEPARTMENT OF
INSURANCE
ISotice is hereby given in accordance with G.S.
150B-21.2 that the N. C. Department of Insurance
intends to adopt rule cited as 11 NCAC 13 .0518.
1 he proposed effective date of this action is July
1, 1994.
Ihe public hearing will be conducted at 10:00
a.m. on May 5, 1994 at the Dobbs Building, 3rd
Floor Hearing Room, 430 N. Salisbury Street,
Raleigh, N.C. 27611.
Reason for Proposed Action: To set forth proce-
dures for continuing education requirements for
bail bondsmen.
(comment Procedures: Written comments may be
sent to Fred Mohn at P.O. Box 26387, Raleigh,
N.C. 27611. Oral presentations may be made at
the public hearing. Anyone having questions
should call Fred Mohn at (919) 733-2200 or Ellen
Sprenkel at (919) 733-4529.
CHAPTER 13 - SPECIAL SERVICES
DIVISION
SECTION .0500 - BAIL BONDSMEN AND
RUNNERS
.0518 CONTINUING EDUCATION
(a) Except as provided in Paragraphs (b) and (c)
of this Rule, the license of any bail bondsman who
fails to meet the minimum continuing education
requirements of G.S. 58-7 1 -7 1(b) is subject to
suspension under G.S. 58-71-80.
(h) The Commissioner shall notify a bail bonds-
man who appears to have failed to meet the re-
quirements of G.S. 58-7 1-7 Kb) that the bail
bondsman's license will be suspended unless the
bail bondsman shows that he has complied with the
requirements within a 90-dav period after receiving
the notice. Notice shall be forwarded to the bail
bondsman's address, as shown in the records of
the Special Services Division, by certified mail.
Ninety-three days after mailing such notice, if no
affidavit is filed with the Department by the bail
bondsman showing that the bail bondsman has
complied with the requirements of G.S.
58-71-7irb), the bail bondsman's license shall be
suspended by order of the Commissioner.
(c) If the bail bondsman responds to the notice,
the Department shall review all affidavits and other
documents filed by the bail bondsman to determine
whether the bail bondsman has complied with the
requirements of G.S. 58-71-71(b) within the
90-dav period. If the Commissioner determines
that the bail bondsman is in compliance with G.S.
58-71-71(b), he shall enter an appropriate order.
If the Commissioner determines that the bail
bondsman has not shown compliance with G.S.
58-7 1-7 1(b) within the 9Q-day period, then the
Commissioner shall enter an order suspending the
bail bondsman's license.
Statutory Authority G.S 58-2-40; 58-71-71 (f).
JSotice is hereby given in accordance with G.S.
150B-21.2 that the N.C. Department of Insurance
intends to adopt rules cited as 11 NCAC 18 .0019
- .0021.
Ihe proposed effective date of this action is July
1, 1994.
Ihe public hearing will be conducted at 10:00
a.m. on May 5, 1994 at the Dobbs Building, 3rd
Floor Hearing Room, 430 N. Salisbury Street,
Raleigh, N.C. 27611.
Ixeason for Proposed Action: Establishes further
guidelines for annual certification of MEWAs.
L^omment Procedures: Written comments may be
sent to Wblter James at P.O. Box 26387, Raleigh,
N.C. 27611. Oral presentations may be made at
the public hearing. Anyone having questions
should call miter James at (919) 733-3284 or
Ellen Sprenkel at (919) 733-4529.
CHAPTER 18 - MULTIPLE EMPLOYER
WELFARE ARRANGEMENTS
.0019 "QUALIFIED ACTUARY";
MAXIMUM NET RETENTION
FILING
(a) As used in this Rule and in if NCAC 18
.0020 and 11 NCAC 18 .0021. "qualified actuary"
means an individual who is either an Associate or
Fellow of the Society of Actuaries or a Member of
9:2
NORTH CAROLINA REGISTER
April 15, 1994
76
PROPOSED RULES
the American Academy of Actuaries and who has
at least five years of actuarial experience with
ME WAS.
(b) Every year each MEWA shall calculate its
maximum net retention limit in accordance with 1 1
NCAC 18 .0018. This calculation must be per-
formed before the anniversary date of the
MEWAs stop-loss insurance contract and shall be
filed, no later than 30 days before the anniversary
date of the stop-loss insurance contract, with the
Actuarial Services Division of the Department.
This calculation shall include the numerical results
of all steps in JJ. NCAC 18 .0018 and shall be
performed by a qualified actuary.
Statutory Authority G.S. 58-2-40; 58-49-40(c).
.0020 CERTIFICATION OF RESERVES
FILING
Every year each MEWA shall file the following
actuarial certifications executed by a qualified
actuary in the following manner:
.0018. unless the Commissioner of
Insurance has approved such higher limits
as described in 1 1 NCAC 18 .0018(d).
Statutory Authority G.S. 58-2-40; 5 8-49-40(c).
.0021 CERTIFICATION OF RATES FILING
Every year each MEWA shall file the following
actuarial certification executed by a qualified
actuary in the following manner:
^ (Name of Qualified Actuary")
am a qualified actuary as defined
in 11 NCAC 18 .0Q19(a) and I
certi fy that the rates developed
for (Name of MEWA) are
calculated in an actuarially sound
manner and that these rates are
adequate, not excessive, and not
unfairly discriminatory."
Statutory' Authority' G. S. 58-2-40; 58-49-40(c).
^ (Name of Qualified Actuary) am a qualified
actuary as defined by U NCAC 18 .0Q19(a) and
I have reviewed:"
£1} 11 NCAC 18 .0015 titled. "Minimum
Reser\'e Standards. " and I certify that if
the adequacy of the MEWAs reserves
requires reserves in excess of the
minimum standards described in 1 1
NCAC 18 .0016 and U NCAC 18
.(X)17. then such increased reserves will
be held and considered the minimum
reserves for (Name of MEWA).
£2} 11 NCAC 18 .0016 titled. "Claim
Resen.'es. " and I certify that the
MEWAs claim reserves are being
calculated in an actuarially sound manner
that produces reserves at least as great as
those prescribed in 11 NCAC 18 .0016.
ii) 11 NCAC 18 .0017 titled. "Premium
Reser%'es. " and I certify that the
MEWAs premium reserves are being
calculated in an actuarially sound manner
that produces reserves at least as great as
those prescribed in 11 NCAC 18 .0017.
14} 11 NCAC 18 .0018 titled. "Maximum
Net Retention Standard." and I certify
that the MEWAs maximum net retention
limits are being calculated in an
actuarially sound manner that produces
maximum net retention limits no greater
than those prescribed in H NCAC 18
TITLE 13 - DEPARTMENT
OF LABOR
iSotice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Department of
Labor intends to amend rule cited as 13 NCAC
07F .OWL
1 he proposed effective date of this action is July
3L 1994
1 he public hearing mil be conducted at 10;00
a.m. on May 4. 1994 at the Seaboard Building
Conference Room, 413 N. Salisbury Street, Ra-
leigh, NC.
MXeason for Proposed Action: Federal law re-
quires that the North Carolina Dept. of Labor,
Division of Occupational Safety & Health adopt
federal OSHA rules /standards, but in this case
NCDOL/OSHA is adopting a more protective
version of this Rule.
L^omment Procedures: Persons wanting to pres-
ent oral testimony at the hearing should provide a
written summary of the proposed testimony to the
Division three business days prior to the hearing
date. Written comments will be accepted until
May 18, 1994. Direct all correspondence to Jill
77
9:2
NORTH CAROLINA REGISTER
April 15, 1994
PROPOSED RULES
F. Cramer NCDOL/OSHA, 413 N. Salisbury St.,
Raleigh, NC 27603-5942.
CHAPTER 7 - OSHA
SUBCHAPTER TF - STANDARDS
SECTION .0100 - GENERAL INDUSTRY
STANDARDS
.0101 GENERAL INDUSTRY
(a) The provisions for the Occupational Safety
and Health Standards for General Industry, Title
29 of the Code of Federal Regulations Part 1910,
are incorporated by reference except tbat as fol-
lows:
(1) within Subpart H - Hazardous Materi-
als, 29 CFR 1910.120, Hazardous
waste operations and emergency re-
sponse, 29 CFR 1910.120(q)(6) is
amended by adding a new level of
training:
"(vi) First responder operations
plus level. First responders at
operations plus level are individu-
als who respond to hydrocarbon
fuel tank leaks for purposes of
stopping the release where the
leaking tanks contain a hydrocar-
bon fuel which is used to propel
the vehicle on which the tank is
located. Only those vehicles
designed for highway use or those
used for industrial, agricultural or
construction purposes are cov-
ered. First responders at the
operations plus level shall have
received at least training equal to
first responder operations level
and in addition shall receive
training or have had sufficient
experience to objectively demon-
strate competency in the follow-
ing areas and the employer shall
so certify:
(A) Know how to select and
use proper specialized
personal protective
equipment provided to
the first responder at
operations plus level;
(B) Understand basic
hazardous materials
terms as they pertain to
hydrocarbon fuels;
(C) Understand hazard and
risk assessment
techniques that pertain to
gasoline, diesel fuel,
propane and other
hydrocarbon fuels;
(D) Be able to perform
control, containment,
and/or confinement
operations for gasoline,
diesel fuel, propane and
other hydrocarbon fuels
within the capabilities of
the available resources
and personal protective
equipment; and
(E) Understand and know
how to implement
decontamination
procedures for
hydrocarbon fuels."
(lA) Subpart R ;; Special Industries ^^
incorporation by reference of final rule
for 29 CFR 1910.269, Electric Power
Generation. Transmission, and
Distribution, including Appendices A
through E. published in 59 FR (January
31, 1994) pages 4437 ; 4475 and
adopted by the North Carolina
Department of Labor on July 31. 1994,
except that 29 CFR 1910.269(g)(n
through 1910.269(g)(2)(v) is amended
to read as follows :
"(g) Personal protective equipment. (1)
General. Personal protective equipment shall meet
the requirements of Subpart I of this Part.
(la) Definitions. £i} 'Fall
arrest equipment' means any
equipment that halts the
accidental fall of the user and
shall consist of the following: an
anchorage, fall arrester, lanyard,
shock (energy) absorber, body
harness, retractable lifeline, and a
vertical or horizontal lifeline
which is assembled for the
purpose of arresting any
accidental fall of jts user.
(ii) 'Fall protection equipment'
means any equipment that either
prevents the user from moving
into an area that presents the
hazard of falling or arrests any
fall,
(iii) 'Travel restricting
9:2
NORTH CAROLINA REGISTER
April 15, 1994
78
PROPOSED RULES
equipment' means any equipment
that prevents the user from
moving into an area that presents
the hazard of falling and may
consist of some or all of the
following: an anchorage, lanyard,
body belt, body harness, and a
vertical or horizontal lifeline
which is assembled for the
purpose of preventing its user
from moving into a faU hazard
area.
(iv) 'Work positioning
equipment' means any equipment
that provides a primary means of
support with relative comfort for
its user at the workplace or
workstation.
(2) Fall protection. £1}
Personal fall arrest equipment
shall meet the requirements of
ANSI Z359.1 (1992).
(ii) Body belts and safety straps
for work positioning shall meet
the requirements of §1926.959 of
this Chapter.
(iii) Body belts, safety straps.
lanyards, lifelines, and body
harnesses shall be inspected
before use each day to determine
that the equipment is in safe
working condition. Defective
equipment shall not be used.
(iv) Lifelines shall be protected
against being cut or abraded.
(v) Fall arrest equipment
meeting the requirements of
ANSI Z359.1 (1992) shall be m
work
constant use with
any
positioning or travel restricting
equipment in use by employees
working at elevated locations
more than 4 feet (1.2 m) above
the ground on metal, concrete
and/ or wood poles, lattice and
non-lattice towers. substation
structures, within the baskets of
all extensible and articulating
boomed aerial equipment, and in
all generating stations.
Anchorages and anchor points,
and vertical and horizontal
lifelines shall have a tensile
strength capable of supporting a
static load of five thousand
(5.000) pounds. " 29 CFR
1910.269 as amended is effective
on July IL 1994. except for 29
CFR 1910.269(a)(2) Trainins
which is effective on January 31.
1995.
hidiior's Note: (2) Proposed text was
published in Volume 8, Issue 18 of the North
Carolina Register .
(b) The parts of the Code of Federal Regulations
adopted by reference in this Subchapter shall not
automatically include any subsequent amendments
thereto, except as follows:
(1)
(2)
ill
(41
£5}
Subpart H — Hazardous Materials —
technical corrections at
1910.109(g)(4)(v), Explosives and
Blasting Agents, published in 58 FR
(March 29, 1993) page 16496 and
adopted by the North Carolina
Department of Labor on December 3 1 ,
1993;
Subpart H — Hazardous Materials —
technical corrections at
1910.110(d)(ll), Storage and Handling
of Liquefiold Liquefied Petroleum
Gases, published in 58 FR (March 19.
1993) page 15089 and adopted by the
North Carolina Department of Labor on
December 31, 1993;
Subpart I zz Personal Protective
Equipment ;; revisions to 1910.137,
Electrical Protective Equipment,
published in 59 FR (January 3 1 , 1994)
pages 4435 ^ 4437 and adopted by the
North Carolina Department of Labor on
July 31. 1994;
(3^ Subpart J — General Environmental
Controls — typographical and clarifying
corrections at 1910.146,
Permit-Required Confined Spaces,
published in 58 FR (June 29. 1993)
pages 34844 - 34851 and adopted by
the North Carolina Department of
Labor on September 24, 1993;
corrections are to final rule for
Permit-Required Confined Spaces as
originally published in 58 FR 4462
(January 14. 1993);
Subpart S zz Electrical — amendment to
citation authority for Subpart S of 1910.
and amendments to Notes 2 and 3 for
1910.133(c)(1) and the Note for
1910.133(c)(3). published in 59 fE
(January 31. 1994) pages 4475 -_ 4576
79
9:2
NORTH CAROLINA REGISTER
April 15, 1994
PROPOSED RULES
and adopted by the North Carolina
Department of Labor on July 31. 1994;
(6) {4) Subpart Z -- Toxic and Hazardous
Substances :
(A) Revocation of exposure limits in
"Final rule limits" columns of Table
Z-l-A at 1910.1000, Air
Contaminants, published in 58 FR
(June 30, 1993) pages 35338 - 35351
and adopted by the North Carolina
Department of Labor on September
24, 1993.
(B) Correction to Table Z-3 Mineral Dust
at 1910.1000, Air Contaminants,
published in 58 FR (July 27, 1993)
page 40191 and adopted by the North
Carolina Department of Labor on
December 31, 1993.
(C) Typographical and technical
corrections at 1910.1027, Cadmium,
published in 58 FR (April 23, 1993)
pages 21778 - 21787 and adopted by
the North Carolina Department of
Labor on September 24, 1993;
corrections are to final rule for
Occupational Exposure to Cadmium
as originally published in 57 FR
42101 (September 14, 1992).
(c) Copies of the applicable Code of Federal
Regulations sections referred to in this Subchapter
are available to the public. Please refer to 13
NCAC 7A .0302 for the costs involved and from
whom copies may be obtained
Statutory Authority G.S. 95-131; 95-133; 150B-
21.6.
TITLE ISA - DEPARTMENT OF
ENVIRONMENT, HEALTH, AND
NATURAL RESOURCES
iSotice is hereby given in accordance with G.S.
150B-21.2 that the DEHNR-DEM/Air Quality
intends to amend rules cited as 15A NCAC 2D
.1301, .1302 and .1304.
1 he proposed effective date of this action is
November 1, 1994.
1 he public hearing will be conducted at 7:00
p.m. on May 16, 1994 at the Forsyth County
Public Library' Auditorium, 660 West 5th Street,
Winston-Salem, NC.
Jxeason for Proposed Action: To correct a
reference to remove Greensboro/Winston-
Salem/High Point MSA from the oxygenated
gasoline requirement to establish a triggering
mechanism for maintenance areas.
i^omment Procedures: All persons interested in
these matters are invited to attend the public
hearings. Am' person desiring to comment for
more than three minutes is requested to submit a
written statement for inclusion in the record of
proceedings at the public hearing. The hearing
record hHI remain open until June 15, 1994, to
receive additional written statements.
Comments should be sent to and additional
information concerning the hearing or the
proposals may be obtained by contacting:
Mr. Thomas C Allen
Division of Environmental Management
P O Box 29535
Raleigh, North Carolina 27626-0535
(919) 733-1489
r'iscal Note: 1 hese Rules affect the expenditures
or revenues of local funds. A fiscal note was
submitted to the Fiscal Research Division on
March 24, 1994, OSBM on March 24, 1994, N. C.
League of Municipalities on March 4, 1994, and
N. C. Association of County Commissioners on
March 4, 1994.
CHAPTER 2 - ENVIRONMENTAL
MANAGEMENT
SUBCHAPTER 2D - AIR POLLUTION
CONTROL REQUIREMENTS
SECTION .1300 - OXYGENATED
GASOLINE STANDARD
.1301 PURPOSE
This Section sets forth oxygenated gasoline
standards in areas where an oxygenated gasoline
program is implemented pursuant to State law for
all gasoline sold wholesale for use or for all
gasoline sold retail, offered for use, dispensed, or
otherwise provided for use in any spark-ignition
engine other than aircraft in the areas defined in
Rule .13024a) of this Section during the time
periods defined in Rule .1302{c}{b) of this Section.
Statutory Authority G.S.143-215. 3(a)(1); 143-
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NORTH CAROLINA REGISTER
April 15, 1994
80
PROPOSED RULES
215. 107(a)(3). (7).
.1302 APPLICABILITY
(a) This Section applies to gasoline identified in
Rule .1301 of this Section during the time period
described in Paragraph (¥) {c} of this Rule in th«
two areas id e ntified aa follows:
{^ the Raleigh/Durham Metropolitan
Statistical Area consisting of Durham,
Franklin, Orange, and Wake Counties^-j
(3^ the Groon o boro/Winston Sal e m/High
Point — Metropolitan Statistical — Ar e a
oonsiating of Davio, Davidaon, Forsyth.
Guilford, Randolph, Stok e s, and
(b)
Yadkin Countieo.
This Section shall
apply to gasoline
identified in Rule .1301 of this Section during the
time period described in Paragraph (c) of this Rule
in any of the following areas, and in that area
only, when the Director notices in the North
Carolina Register that the area is in violation of
the ambient air quality standard for carbon
monoxide:
(1) the Greensboro/Winston-Salem/High
Point Metropolitan Statistical Area
consisting of Davie, Davidson, Forsyth,
Guilford, Randolph, Stokes, and
Yadkin Counties; or
(2] the Charlotte/Gastonia/Rock Hill
Metropolitan Statistical Area consisting
of Cabarrus, Gaston, Mecklenburg, and
Union Counties.
Violations of the ambient air quality standard for
carbon monoxide shall be determined in
accordance with 40 CFR 50.8.
^(c) This Section applies to gasoline identified
in Rule .1301 of this Section and in the counties
identified in Paragraph (a) or (b) of this Rule for
the four-month period beginning November 1 and
running through the last day of February of the
following year. The first such period begins
November 1 , 1 992^ for areas identified in
Paragraph (a) of this Rule . For areas identified in
Paragraph (b) of this Rule, the first such period
shall begin on the first November i following the
notice of violation in the North Carolina Register.
4^(d) Gasoline in storage^
(1) within the counties identified in
Paragraph (a) of this Rule prior to
November 1; or
(2) within the counties identified in
Paragraph (b) of this Rule prior to
November 1 of the year in which this
Section goes into effect
at a dispensing facility having total gasoline tank
capacity of less than 550 gallons or a total weekly
dispensing rate of less than 550 gallons is
exempted from Rule .1304 of this Section, but any
gasoline supplied to the facility during the period
identified in Paragraph (b) or £c) of this Rule shall
comply with Rule .1304 of this Section.
Statutory Authority G.S. 143-215. 3(a)(1); 143-
215. 107(a)(3), (7).
.1304 OXYGEN CONTENT STANDARD
(a) Gasolino With the exception in Paragraph fb")
of this Rule, gasoline to which this Section applies
shall have an oxygen content of not less than 2.7
percent by weight during the period defined in
Paragraph (fe)Ic} of Rule .1302 of this Section.
£b} After October 31, 1994, if the Director
notices in the North Carolina Register that the
Raleigh/Durham Metropolitan Statistical Area is in
violation of the ambient air quality standard for
carbon monoxide, gasoline to which this Section
applies sold in the Raleigh/Durham Metropolitan
Statistical Area shall have an oxygen content of not
less than 3.1 percent by weight during the period
defined in Paragraph (c) of Rule .1302 of this
Section. The first such period shall begin on the
first November 1 following the notice of violation
in the North Carolina Register. Violations of the
ambient air quality standard for carbon monoxide
shall be determined in accordance with 40 CFR
50.8.
Statutory Authority G.S 143-21 5. 3(a)(1); 143-
215. 107(a)(3), (7).
* * * *
iSotice is hereby given in accordance with G.S.
150B-21.2 that the EHNR - Division of Environ-
mental Management intends to amend rule cited as
15A NCAC2L .0202.
1 he proposed effective date of this action is
September 1, 1994.
1 he public hearing will be conducted at 7:00
p.m. on May 12, 1994 at the Archdale Building,
Ground Floor Hearing Room, 512 North Salisbury
Street, Raleigh NC 27604.
ixeason for Proposed Action: Will provide
81
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April 15. 1994
PROPOSED RULES
groundwater standards for eight (8) substances.
These chemicals are Boron, Butylbenzyl phthalate,
Di-n-Octyl phthalate, Diundecyl phthalate
(Santicizer 711), Fluorene, Naphthalene,
Phenanthrene, and Phenol. Action to consider
adoption of standards for these eight substances as
groundwater standards is necessary to satisfy
requirements of 15A NCAC 2L .0202(c).
Comment Procedures: Interested persons may
contact David Hance at (919) 733-3221 for more
information. Oral comments may be made during
the hearing. All written comments must be
submitted by May 16, 1994. Written copies of oral
statements exceeding three minutes are requested.
Oral statements may be limited at the discretion of
the hearing officer Mail comments to: David
Hance, DEHNR-DEM Groundwater Section, P.O.
Box 29535, Raleigh, N. C. 27626-0535.
CHAPTER 2 - ENVIRONMENTAL
MANAGEMENT
SUBCHAPTER 2L - GROUNDWATER
CLASSIFICATION AND STANDARDS
SECTION .0200 - CLASSIFICATION
AND GROUNDWATER QUALITY
STANDARDS
,0202 GROUNDWATER QUALITY
STANDARDS
(a) The groundwater quality standards for the
protection of the groundwaters of the state are
those specified in this Rule. They are the
maximum allowable concentrations resulting from
any discharge of contaminants to the land or
waters of the state, which may be tolerated without
creating a threat to human health or which would
otherwise render the groundwater unsuitable for its
intended best usage.
(b) The groundwater quality standards for
contaminants specified in Paragraphs (g) and (h) of
this Rule shall be as listed, except that:
(1) Where the standard for a substance is
less than the practical quantitation limit,
the detection of that substance at or
above the practical quantitation limit
shall constitute a violation of the
standard.
(2) Where two or more substances exist in
combination, the Director shall consider
the effects of chemical interactions as
determined by the Division of
Epidemiology and may establish
maximum concentrations at values less
than those established in accordance
with Paragraphs (c) and (g) of this
Rule. In the absence of information to
the contrary, the carcinogenic risks
associated with carcinogens present
shall be considered additive and the
toxic effects associated with
non-carcinogens present shall also be
considered additive.
(3) Where naturally occurring substances
exceed the established standard, the
standard will be the naturally occurring
concentration as determined by the
Director.
(c) Except for tracers used in concentrations
which have been determined by the Division of
Epidemiology to be protective of human health,
and the use of which has been permitted by the
Division, substances which are not naturally
occurring and for which no standard is specified
shall not be permitted in detectable concentrations
in Class GA or Class GSA groundwaters. Any
person may petition the Director to establish an
interim maximum allowable concentration for an
unspecified substance, however, the burden of
demonstrating those concentrations of the
substance which correspond to the levels described
in Paragraph (d) of this Rule rests with the
petitioner. The petitioner shall submit relevant
toxicological and epidemiological data, study
results, and calculations necessary to establish a
standard in accordance with the procedure
prescribed in Paragraph (d) of this Rule. Within
three months after the establishment of an interim
maximum allowable concentration for a substance
by the Director, the Director shall initiate action to
consider adoption of a standard for that substance.
(d) Groundwater quality standards for substances
in Class GA and Class GSA groundwaters are
established as the lesser of:
(1) Systemic threshold concentration
calculated as follows: [Reference Dose
(mg/kg/day) x 70 kg (adult body
weight) x Relative Source Contribution
(.10 for inorganics; .20 for organics)] /
[2 liters/day (avg. water consumption)];
(2) Concentration which corresponds to an
incremental lifetime cancer risk of
1x10*;
(3) Taste threshold limit value;
(4) Odor threshold limit value;
(5) Maximum contaminant level; or
(6) National secondary drinking water
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NORTH CAROLINA REGISTER
April 15, 1994
82
PROPOSED RULES
standard.
(e) The following references, in order of prefer-
ence, shall be used in establishing concentrations
of substances which correspond to levels described
in Paragraph (d) of this Rule.
(1) Integrated Risk Information System
(U.S. EPA).
(2) Health Advisories (U.S. EPA Office of
Drinking Water).
(3) Other health risk assessment data pub-
lished by U.S. EPA.
(4) Other appropriate, published health risk
assessment data, and scientifically valid
peer-reviewed published toxicological
data.
(f) Groundwater quality standards specified in
Paragraphs (g) and (Ti) of this Rule and interim
maximum allowable concentrations established
pursuant to Paragraph (c) of this Rule shall be
reviewed on a biennial basis. Appropriate modifi-
cations to established standards will be made in
accordance with the procedure prescribed in
Paragraph (d) of this Rule where modifications are
considered appropriate based on data published
subsequent to the previous review.
(g) Class GA Standards. Where not otherwise
indicated, the standard refers to the total concen-
tration in milligrams per liter of any constituent in
a dissolved, colloidal or particulate form which is
mobile in groundwater. This does not apply to
sediment or other particulate matter which is
preserved in a groundwater sample as a result of
well construction or sampling procedures.
(1)
(2)
(3)
(4)
(5)
£6)
18)
V™7
m)
{^
{^
04)
(\f,\
acetone: 0.7
acrylamide (propenamide): 0.00001
arsenic: 0.05
barium: 2.0
benzene: 0.001
boron: 0.32
(7) bromoform (tribromomethane) :
0.00019
butylbenzyl phthalate: 0.10
£9) cadmium: 0.005
(10) carbofuran: 0.036
carbon tetrachloride: 0.0003
iiii
(12)
(13)
(14)
(15)
la^
chlordane: 2.7 x
chloride: 250.0
chlorobenzene: 0.05
chloroform (trichloromethane) :
0.00019
(16) 2-chlorophenol: 0.0001
(17) chromium: 0.05
(18) cis-l,2-dichlonoethene: 0.07
(19) coliform organisms (total): 1 per
100 milliliters
fW)
(~n,\
(20) color: 15 color units
(21) copper: 1 .0
(22) cyanide: 0.154
(23) 2, 4-D (2,4-dichlorophenoxy
acetic acid): 0.07
(24) l,2-dibromo-3-chloropropane:
2.5 X 10-"')
(25) dichlorodifluoromethane
(Freon-12; Halon): 1.4
(26) 1,1 dichloroethane: 0.7
(27) 1,2-dichloroethane (ethylene
dichloride): 0.00038
(28) 1,1-dichlonoethylene (vinylidene
chloride): 0.007
43^
(29) 1,2-dichloropropane: 0.00056
(3^
(30) di-n-butyl (or dibutyl) phthalate
(DBP): 0.7
^39)
(31) diethylphthalate (DEP): 5.0
(^
(32) di(2-ethylhexyl) phthalate
(DEHP): 0.003
(33)
di-n-octvl phthalate: 0.14
^m
(34) p-dioxane (1,4-diethylene
dioxide): 0.007
m)
(35) dioxin: 2.2 x lO"'"
(^
(36) dissolved solids (total): 500
(37)
diundecvl phthalate (Santicizer 711):
0.14
m)
(38) endrin: 0.002
im
(39) epichlorohvdrin
(l-chloro-2,3-epoxypropane): 0.00354
4^
(40) ethylbenzene: 0.029
^*7)
(41) ethylene dibromide (EDB;
1,2-dibromoethane): 4.0 x lO""
{^
(42) ethylene glycol: 7.0
(43)
fluorene: 0.28
#9)
(44) fluoride: 2.0
(AC\\
(45) foaming agents: 0.5
{44^
(46) gross alpha (adjusted)particle
activity (excluding radium-226 and
uranium): 15 pCi/1
443)
(47) heptachlor: 8.0 x lO'*
{A^
(48) heptachlor epoxide: 4.0 x lO"^
(44)
(49) heptane: 2.1
44§)
(50) hexachlorobenzene
(perchlorobenzene): 0.00002
(46)
(51) n-hexane: 0.42
{47)
(52) iron: 0.3
(48)
(53) lead: 0.015
{49)
(54) lindane: 2.0 x 10^
m)
(55) manganese: 0.05
(^
(56) mercury: 0.0011
(§3)
(57) metadichlorobenzene
(1,3-dichlonDbenzene): 0.62
^^
(58) methoxychlor: 0.035
{§4)
(59) methylene chloride
83
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NORTH CAROLINA REGISTER
April 15, 1994
PROPOSED RULES
(5j)
(62)
(71)
(72)
/•/;<; -I
f^
(dichloromethane): 0.(X)5
(60) methyl ethyl ketone (MEK;
2-butanone): 0.17
(61) methyl tert-butyl ether (MTBE):
0.2
naphthalene: 0.021
(63) nickel: 0.1
(64) nitrate: (as N) 10.0
(65) nitrite: (as N) 1 .0
(66) orthodichlorobenzene
(1,2-dichlonDbenzene): 0.62
(67) oxamyl: 0.175
(68) paradichlorobenzene
(l,4-dichlon3benzene): 0.075
(69) pentachlorophenol: 0.0003
(70) Ph: 6.5 - 8.5
phenanthrene: 0.21
phenol: 0.30
(73) radium-226 and radium-228
(combined): 5 Pci/1
(74) selenium: 0.05
(75) silver: 0.018
(76) styrene (ethenylbenzene) : 0.1
(77) sulfate: 250.0
(78) tetrachloroethylene
(perchloroethylene; PCE): 0.0007
(79) toluene (methyjbenzene): 1.0
(80) toxaphene: 3.1 x la''
(81) 2, 4, 5,-TP (Silvex): 0.05
(82) trans- 1,2-dichloroethene: 0.07
(83) 1,1,1 -trichloroethane (methyl
chloroform): 0.2
(84) trichloroethylene (TCE): 0.0028
trichlorofluoromethane: 2.1
vinyl chloride (chloroethylene):
10^
xylenes (o-, m-, and p-): 0.53
zinc: 2.1
The standards for this
same as those for Class GA
(85)
(86)
1.5 X
{W) 187}
{80) 188}
(h) Class GSA Standards
class shall be the
except as follows:
(1) chloride: allowable increase not to
exceed 100 percent of the natural
quality concentration.
(2) total dissolved solids: 1000 mg/1.
(i) Class GC Waters.
(1) The concentrations of substances which,
at the time of classification exceed the
standards applicable to Class GA or
GSA groundwaters shall not be caused
to increase, nor shall the concentrations
of other substances be caused to exceed
the GA or GSA standards as a result of
further disposal of contaminants to or
beneath the surface of the land within
the boundary of the area classified GC.
(2) The concentrations of substances which,
at the time of classification, exceed the
standards applicable to GA or GSA
groundwaters shall not be caused to
migrate as a result of activities within
the boundary of the GC classification,
so as to violate the groundwater or
surfece water quality standards in
adjoining waters of a different class.
(3) Concentrations of specific substances,
which exceed the established standard
at the time of classification, shall be
listed in Section .0300 of this
Subchapter.
Statutory Authority G.S. 143-214.1; 1438-282(2).
jyiotice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Wildlife Re-
sources Commission intends to amend rule cited as
15ANCAC IOC .0302.
1 he proposed effective date of this action
October 1. 1994.
IS
1 he public hearing will be conducted at 10:00
a.m. on May 9, 1994 at the Archdale Building,
3rd Floor Conference Room, 512 N. Salisbury
Street, Raleigh, NC 27604-1188.
ixeason for Proposed Action: To prohibit the
taking of spotted (speckled) sea trout with special
fishing devices in inland waters.
L^onwient Procedures: Interested persons may
present their views either orally or in writing at
the hearing. In addition, the record of hearing
will be open for receipt of written comments from
April 15, 1994 to May 16. 1994. Such written
comments must be delivered or mailed to the N. C.
Wildlife Resources Commission, 512 N. Salisbury
Street, Raleigh, NC 27604-1188.
CHAPTER 10 - WILDLIFE RESOURCES
AND WATER SAFETY
SUBCHAPTER IOC - INLAND FISHING
REGULATIONS
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84
PROPOSED RULES
SECTION .0300 - GAME FISH
.0302 MANNER OF TAKING
INLAND GAME FISHES
Except as provided below, it is unJawful for any
person to take inJand game fishes from any of the
waters of North Carolina by any method other than
with hook and line. Landing nets may be used to
land fishes caught on hook and line. Game fishes
taken incidental to commercial fishing operations
in joint fishing waters or coastal fishing waters
shall be immediately returned to the water un-
harmed. Game fishes taken incidental to the use
of licensed special devices for taking nongame
fishes from inland fishing waters as authorized by
15A NCAC IOC .0407 shall be immediately
returned to the water unharmed , e xcept that spot
t e d s e a trout may bo r e tained without limit .
Statutory Authority G.S. 113-134; 113-273;
113-292; 113-302.
TITLE 19A - DEPARTMENT OF
TRANSPORTATION
I\ otice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Department of
Transportation intends to amend rule cited as 19A
NCAC 2B .0221.
1 he proposed effective date of this action is
August 1, 1994.
Instructions on How to Demand a Public Hearing
(must be requested in writing within 15 days of
notice); A demand for a public hearing must be
made in writing and mailed to Emily Lee, Depart-
ment of Transportation , P. O. Box 25201 , Raleigh ,
NC 27611. The demand must be received within
15 days of this Notice.
AVeason for Proposed Action; Amendments
increase the distances from an interchange that
facilities may be located to qualify for erection of
General Motorist Services signs.
L^omment Procedures; Any interested person may
submit written comments on the proposed rule by
mailing the comments to Emily Lee, Department of
Transportation. PO. Box 25201, Raleigh, NC
27611 within 30 days after the proposed rule is
published or until the date of any public hearing
held on the proposed rule, whichever is longer.
CHAPTER 2 - DIVISION OF HIGHWAYS
SUBCHAPTER 2B - HIGHWAY PLANNING
SECTION .0200 - TRAFFIC ENGINEERING
.0221 GENERAL MOTORIST SERVICES
SIGNS
(a) General Motorist Services Signs mean signs
that provide travelers with directional information
for essential motorist services. The signs carry
word legends GAS, DIESEL, LP (PROPANE)
GAS. FOOD, LODGING, PHONE, HOSPITAL,
and TOURIST INFORMATION CENTER with
appropriate directional legend, and the exit number
where applicable. The cost associated with Gener-
al Motorist Services Signs is the responsibility of
the Department of Transportation.
(b) Specific Services Signs mean signs erected
under the Specific Information Signing Program as
described in G.S. 136-140.7. These signs provide
travelers with business identification and direction-
al information for essential motorist services. The
signs carry word legends GAS, FOOD, LODG-
ING and CAMPING with appropriate directional
legend, the exit number where applicable, and one
or more business logos. The cost associated with
Specific Services Signs is borne by the businesses
whose logos are shown on the signs through initial
and annual fees paid to the Department of Trans-
portation.
(c) State Rural Primary' Syst e m. Signing for
general motorist services shall be installed only on
rural fully controlled access highways and shall be
in conformance with the "Manual on Uniform
Traffic Control Devices. " Requests for signing for
general motorist services shall be directed to the
highway division engineer having jurisdiction in
the county in which the sign is proposed. If ap-
proved, services signing shall be installed and
maintained by the Department of Transportation.
(d) General Requirements for All Services. The
requirements in this Paragraph shall be applied in
determining the placement of service signs on the
int e rstate or rural fully controlled access highways.
Service signs shall be erected only at grade sepa-
rated interchanges. A fully controlled access
highway shall have neither a minimum length
requirement nor minimum number of interchanges
requirement to qualify for erection of service
signs. A facility shall meet the specific require-
ments for signs in Paragraph (e). It shall have an
outside coin-operated telephone in the immediate
85
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NORTH CAROLINA REGISTER
April 15, 1994
PROPOSED RULES
vicinity of the business (within the intersection
area, at an adjacent business or across the road),
which is accessible. A business phone at an
adjacent business is not a public telephone for a
particular applicant business. The maximum
distance that a "Gas", "Diesel", "LP (PROPANE)
Gas", "Food", or "Lodging" service can be locat-
ed from the facility shall not exceed one mile, with
the maximum — diotano e o — b e ing — thr ee — mil e s — fef
"Food" and "Lodging", and fiv e mil e s for "Camp
ing", three miles in either direction via an
all-weather road. Where no qualifying services
exist within three miles, the maximum distance
may be increased to six miles, provided the total
travel distance to the business and return to the
interchange does not exceed 12 miles. When the
nearest qualifying service is located more than
three miles from the facility, the distance to the
service shall be shown on the service sign at the
ramp terminal. The maximum distance for
"Camping" service shall not exceed 10 miles.
Said distances shall be measured from the point on
the interchange crossroad, coincident with the
centerline of the facility route median, along the
roadways to the respective motorist service. The
point to be measured to for each business is a
point on the roadway that is perpendicular to the
comer of the nearest wall of the business to the
interchange. The wall to be measured to shall be
that of the main building or office. Walls of sheds
(concession stands, storage buildings, separate
restrooms, etc.) whether or not attached to the
main building are not to be used for the purposes
of measuring. If the office (main building) of a
business is located more than 0.2 mile from a
public road on a private road or drive, the distance
to the office along the said drive/road shall be
included in the overall distance measured to
determine whether or not the business qualifies for
business signing. The office shall be presumed to
be at the place where the services are provided.
(e) Specific Requirements for Erection of
General Motorist Services Signs:
(1) Gas, Diesel, LP (PROPANE) Gas, and
Associated Services. Criteria for
erection of a Gas service sign, a Diesel
service sign, or an LP (PROPANE) Gas
Service sign shall include:
(A) appropriate licensing to operate as
required by law;
(B) vehicle services for fuel, motor oil,
tire repair (by an employee) and
water;
(C) restroom facilities and drinking water
suitable for public use;
(D) an on-premise attendant to collect
monies, make change, and make or
arrange for tire repairs; and
(E) year-round operation at least 16
continuous hours per day, 7 days a
week.
(2) Food. Criteria for erection of a Food
service sign shall include:
(A) appropriate licensing to operate as
required by law, and a permit to
operate by the health department;
(B) year-round operation at least 12
continuous hours per day to serve
three meals a day (sandwich type
entrees may be considered a meal)
(breakfast, lunch, supper), 7 days a
week;
(C) indoor seating for at least 20 persons;
and
(D) public restroom facilities.
(3) Lodging. Criteria for erection of a
Lodging service sign shall include:
(A) appropriate licensing to operate as
required by law, and a permit to
operate by the health department;
(B) sleeping accommodations consisting
of a minimum of 10 units, each
including bathroom and sleeping
rooms;
(C) off-street vehicle parking for each
lodging room for rent; and
(D) year-round operation.
(4) Camping. Criteria for erection of a
Camping service sign shall include:
(A) appropriate licensing to operate as
required by law;
(B) meeting all sfate and county health
and sanitation codes, and having
water and sewer systems which have
been duly inspected and approved by
the local health authority. The
operator shall present evidence of
such inspection and approval;
(C) at least 10 campsites with
accommodations for all types of
travel-trailers, tents and camping
vehicles;
(D) parking accommodations to meet
current demand;
(E) continuous operation, 7 days a week
during business season.
A business sign shall be removed or
masked by the Department during off"
seasons, if the campground is operated
on a seasonal basis.
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NORTH CAROLINA REGISTER
April 15, 1994
86
PROPOSED RULES
(5) Phone. Signs may be posted for a
phone location only in respect to
outdoor telephone booths where service
is available on a twenty-four hour basis.
(6) Hospital. Hospital signs shall consist
of the word "Hospital" along the main
roadway and the blue "H" at the end of
the ramp. The blue "H" shall be used
to trailblaze from the ramp terminal to
the hospital where needed. The intent
of providing "Hospital" signs along
interstate or controlled access highways
is to direct unfemiliar motorists to a
hospital in case there is a need for
emergency medical services. The blue
"Hospital" sign shall be used on the
interstate or controlled access
highways. These hospital signs shall be
used only for hospitals equipped to
handle emergency cases with a
physician on duty 24 hours each day
and within a practical distance from the
interchange. A blue sign showing the
name of the hospital at the end of the
ramp along with the proper directional
arrow may be provided when a traffic
engineering investigation has shown the
need. Trailblazer signs where
necessary shall mark the route to the
hospital using the blue "H". Use of the
name of the hospital on green
directional signs along conventional
(non-interstate or non-controlled access)
type streets and roads when a traffic
engineering investigation has shown
they are needed may be permitted.
These green directional signs apply
only to those hospitals which do not
provide the 24-hour emergency service.
(7) Service signs shall not be erected on
non-controlled or partially controlled
access facilities or at locations within or
near municipalities where it is obvious
to the motorist that services are
available.
(f) Tourist Information Center. Tourist
information center service signing may be
approved and installed by the Department of
Transportation when the following conditions are
met:
(1) The motorist using the highway in a
particular direction must be able to
leave and return to the highway via the
same interchange and continue in the
same direction of travel.
(2) The service must be located in a rest
area on the freeway or within one mile
of the interchange off ramp and on a
direct route from the freeway.
(3) The service must operate continuously
for at least eight hours per day, seven
days per week, and 360 days per year.
(4) At least one separate and trained
attendant with knowledge of tourist
facilities in the state shall be on duty to
service visitors during all hours of
operation.
(5) The facility must have available at no
charge to visitors complete information
on tourist facilities in the state; such as
lodging, auto service, food, medical,
recreational, historical and scenic sites;
and it must also be readily available
when attendant is off duty.
(6) The service must be housed in a
separated area from other facilities in
an appropriate building to provide an
area, heated in winter and cooled in
summer, of not less than 625 square
feet of floor area for displays and
lounge devoted for providing this
service.
(7) The service must have at least one 50
pocket rack for noncommercial public
service materials and displays.
(8) The service must have rest room
facilities available at no cost to the
visitor and designed for use by
handicapped individuals.
(9) The service must have drinking water
approved by appropriate local authority.
(10) The service must have a public
telephone designed for use by
handicapped individuals.
(11) The service must have off-street
parking at no cost to the motorist and
must have curb cuts and ramps for the
handicapped.
(12) Any displays, literature, magazines,
etc., that would be judged by the
Department to be offensive to visitors
with children must not be readily
visible.
(13) The service must provide designated
facilities for pets.
(14) The name of the operating agency,
community, group or enterprise shall
not appear in the legend of any sign.
(g) Removal of General Motorist Services Signs.
(1) If municipal limits are revised so that
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PROPOSED RULES
between the previous interchange and 800
feet in advance of the exit direction sign
for the interchange from which the ser-
vices are available. There shall be at
least 800 feet spacing between the panels
and other signs. In the direction of
traffic, the successive panels shall be
those for "CAMPING", "LODGING",
"FOOD", and "GAS" in that order. A
combination type panel may be used in
remote rural areas of the Interstate Sys-
tem, or other fully controlled access
highway and when space does not permit
all signs and only two of each type of
service is available at the location. A
maximum of three business signs may
appear below each respective service on
a combination type panel. If all four
services are available, "GAS" and
"FOOD" shall be combined on one sign,
and "LODGING" and "CAMPING" shall
be combined on one sign. When the
number of business facilities at a rural
interchange are increased to more than
three for one or more services, existing
combination service business signing
must be removed and replaced with sign
panels, dedicated to each service. If the
spacing limitations prohibit the erection
of Specific Information Panels for all of
the types of services available, preference
shall be given to "GAS", "FOOD",
"LODGING" or "CAMPING" services in
that order. No panels shall be erected
where minimum spacing limitations
cannot be met.
If a panel (s) cannot be erected due to spacing
limitations, a supplemental service sign, which lists
the additional services available, may be erected
below existing sign(s). Not more than three
services may be erected below an existing sign.
(5) On each exit ramp, a ramp panel for the
qualified type of motorist service may be
erected.
If all of the qualified services are visible from the
exit ramp terminal, ramp panels are not required.
(6) The ramp panel shall be erected as de-
tailed on the signing plans for the inter-
change. If conditions permit, the succes-
sive panels along the ramp in the direc-
tion of traffic shall be those for "CAMP-
ING", "LODGING", "FOOD", and
"GAS" in that order.
(7) If there is insufficient space on the ramp
or the mainline for all the panels, priority
shall be given to "GAS", "FOOD",
"LODGING", then "CAMPING" servic-
es in that order. If panel(s) cannot be
erected on a ramp due to spacing limita-
tions, a supplemental service sign, which
lists the additional services available,
may be erected.
(8) Panels shall not be erected at an inter-
change where the motorist cannot conve-
niently re-enter the freeway and continue
in the same direction of travel. Pan e ls
s hall not b e e r e ct e d at any intorohango
with anoth e r controll e d aco e ao facility'.
Authority G.S. 136-89.56; 136-137; 136-139;
143B-346; 143B-348; 143B-350(f); 23 C.F.R. 750,
Subpart A; 23 U.S.C. 131(f).
* * * *
ISotice is hereby given in accordance with G.S.
150B-21.2 that the Department of Transportation,
Division of Motor Vehicles, School Bus and Traffic
Safety Section intends to amend rules cited as 19A
NCAC 03G . 0207; 031 . 0202, . 0307. . 0501 , . 0503.
.0601, .0602, .0701 and .0703.
1 he proposed effective date of this action is July
1. 1994.
1 he public hearing will be conducted at 1:00
p.m. - 3:00 p.m. on May 4. 1994 at the Division
of Motor Vehicles Building, Annex Room 201
(Corference Room), 1100 New Bern Avenue,
Raleigh, NC 27697.
treason for Proposed Action:
19A NCAC 03G .0207 - The commercial driver
license is to go to a five-year renewal cycle.
These requirements for school bus driver certifica-
tion are tied to the CDL cycle. The transition
period will entail CDLs of a minimum of three
years ' and a maximum of seven years ' validity.
The proposed formulation posits per-year require-
ments which meet any eventuality.
19A NCAC 031 .0202 - Tliis item adds one re-
quirement for obtaining an original Commercial
Driver Training School license. This should help
the schools meet their obligations before they have
an emergency.
19A NCAC 031 .0307 - This addition to (l)(b)
requires that a person taking driver training in a
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PROPOSED RULES
Commercial Driver Training School be covered by
a permit while operating the driver training car.
The addition to (2) makes more specific that a
person with a learner 's permit has the book knowl-
edge necessary, needs only in-car physical driving
practice, and cannot be required by a school to
pay money unnecessarily.
19A NCAC 031 .0501 & .0503 - These changes
stiffen the requirements for certification as a
private commercial driver training instructor,
requiring a cleaner driving record for a longer
period of time. They also would require a crimi-
nal check.
19A NCAC 031 .0601 - .0602 - Strictly speaking,
these amendments represent no change at all. The
wording of the proposal is the same; it is merely
shifted from . 0602 to . 0601 , as the more appropri-
ate location for the statement. The component
parts of .0602 are re-lettered/ re-numbered to
reflect the removal of former (b).
19A NCAC 031 .0701 & .0703 - The change in
.0701 doubles the face value of the bond covering
a commercial driver training school against
liability. Adding the city to the address advertized
will aid the consumer in deciding his costs of
travel before signing with the school.
l^omment Procedures: Interested persons may
pre-register to speak at the public hearing by
contacting Mark Fountain, NC DMV, School Bus
and Traffic Safety Section, 1100 New Bern Avenue,
Raleigh, N. C. 27697 (919) 733-3046 no later than
two days prior to the hearing. A 10-minute speak-
ing time will be observed. Written comments will
also be accepted and should be sent to Mr. Foun-
tain at the above address no later than May 16,
1994.
CHAPTER 3 - DIVISION
OF MOTOR VEHICLES
SUBCHAPTER 3G - SCHOOL BUS
AND TRAFFIC SAFETY SECTION
SECTION .0200 - SCHOOL BUS
DRIVER TRAINING
.0207 RENEWAL OF CERTIFICATION
Every driver must be re-certified at the time of
the expiration of his Commercial Driver License
e v e ry four y e ars upon passing the three written
tests (general knowledge, passenger transport, and
air brakes), a pre-trip test, a road test or route
observation, th e three road t e ota (pro trip insp e o
tion, — boflio skillo, and road), and an eye test. A
driver may be exempted from the written tests,
provided he has accumulated no more than three
points on his driving record a driving r e cord oloor
of any oonviotion for a moving violation since his
last certification and has had at least one hour fe«f
hours of in-service training for each year since his
last certification. A driver whose certification
expires may be re-certified within thirty days in
the same manner as though his certification had
not expired. Any driver whose certification
expires for more than thirty days may be re-certi-
fied within the next year four years following the
expiration upon passing the three written tests
(general knowledge, passenger transport, and air
brakes) , the three skills road tests (pre-trip inspec-
tion, basic skills, and road), and an eye test. If
more than one year has four years have elapsed
since the expiration of the most recent certifica-
tion, the applicant must complete the full training
course required of a beginning driver.
Statutory Authority G.S. 20-39(b); 20-218.
SUBCHAPTER 31 - RULES AND
REGULATIONS GOVERNING
THE LICENSING OF COMMERCIAL
DRIVER TRAINING SCHOOLS
AND INSTRUCTIONS
SECTION .0200 - REQUIREMENTS AND
APPLICATIONS FOR COMMERCIAL
DRIVER TRAINING SCHOOLS
.0202 ORIGINAL APPLICATION
Each original application for a commercial driver
training school license shall consist of the follow-
ing:
(1) Application for license;
(2) Personal history statement (Form SBTS-
601, available from the School Bus and
Traffic Safety Section) of owner-operator
or manager;
(3) Proposed plan of operation;
(4) Proof of liability insurance;
(5) Sample copies of contracts;
(6) A check or money order in the amount of
forty dollars ($40.00). This fee is due
for both original and renewal applications
for license;
(7) Certificate of assumed name;
(8) Surety Bond;
(9) A report from the appropriate agency
indicating that the location or locations
meet fire safety standards;
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PROPOSED RULES
(10) A copy of the deed, lease, or other legal
instruments authorizing the school to
occupy such locations;
(11) List of fees for all services oflFered by the
school; afldr
(12) A copy of lease agreement if leasing
vehicles! and
(13) A copy of the business insurance cover-
ing injury to a student.
Statutory Authority G. S. 20-322 through 20-324.
SECTION .0300 - SCHOOL LOCATION:
PHYSICAL FACILITIES: AND
COURSES OF INSTRUCTION
.0307 COURSES OF INSTRUCTION
Commercial driver training schools are autho-
rized to teach the following courses:
(1) For unlicensed persons 18 years of age or
older, a course as follows:
(a) Classroom Instruction. A minimum of
six hours, including (but not limited to)
rules of the road and other laws affect-
ing the operation of motor vehicles,
safe driving practices, pedestrian safety,
and the general responsibilities of the
driver.
(b) Behind-the- Wheel Instruction. A mini-
mum of six hours, including instruction
and practice in all the basic physical
skills necessary for proper control of a
motor vehicle in all normal driving
situations, such as starting, stopping,
steering and turning, controlling the
vehicle in traffic, backing, and parking.
A valid learner's permit issued by the
Driver License Section of the Division
is required.
(c) A person holding a valid learner's
permit issued by the Driver License
Section of the Division shall not be
required to take the six hours of class-
room instruction set forth in (l)(a) of
this Rule.
(d) A person holding a valid learner's
permit or driver's license issued by the
Driver License Section of the Division
may contract for any portion of the six-
hour behind-the-wheel instruction.
(2) For licensed persons a course for purpos-
es of driver improvement, such as im-
proving their knowledge and skill in the
operation of a motor vehicle. A person
holding a valid learner's permit issued by
the Driver License Section of the Divi-
sion shall not be required to take the six
hours of classroom instruction.
(3) For unlicensed persons under the age of
18 years, a course which must be ap-
proved by the Commissioner and the
State Superintendent of Public Instruction
as follows:
(a) Classroom Instruction shall not include
workbook assignments or other work
out of the presence of an instructor. A
minimum of 30 hours shall be taught,
consisting of instruction in:
(i) highway transportation: its social and
economic influence upon life in
America;
(ii) drivers: their physical and mental
characteristics and how their
capabilities and limitations influence
the traffic scene;
(iii) the automobile: its construction,
maintenance, and safe operation;
(iv) traffic law and enforcement: laws of
nature and man-made laws; and their
relationship to traffic safety;
(v) pedestrians and bicycles: their
influence upon the traffic scene;
(vi) engineering: its influence upon
automobiles, highways, traffic
controls, and people;
(vii) driving while impaired: six hours of
instruction on the effects of drinking
upon driving and upon accident and
death rates; and
(viii) rights and privileges of handicapped
persons; their rights to use flags,
placards, cards, license plates, and
parking places.
(b) Behind-the-Wheel Instruction. A
minimum of six hours, actually under
the wheel, including:
(i) femiliarization with the automobile;
the use of its controls; and the
development of skills essential to safe
operation in traffic; and
(ii) driving in traffic with the instructor in
a dual control car to develop abilities
needed to follow the soundest course
of action in responding to complex
situations.
(c) Restrictions:
(i) Behind-the-Wheel instruction shall be
ofl'ered to a student only after he has
successfully completed the classwork
section. If a student has contracted for
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PROPOSED RULES
both classwork and behind-the-wheel
training, behind-the-wheel training
may begin after classwork starts and
before classwork has been completed.
At no time shall a student be taken
out of class to attend behind-the-wheel
training.
(ii) No student shall operate a motor
vehicle upon any public street or
highway unless such student shall
have in his immediate possession a
valid Restricted Instruction Permit
issued by the Division.
(iii) No more than three hours of behind-
the-wheel training shall be given in
any one day. A written record
indicating the date and time of this
training shall be kept on file for each
student. The record must be signed
by the student and shall not include
any hours of observation of other
students, i.e. mere presence in the car
while someone else is driving,
(d) Other requirements:
(i) Plans for the content of the
curriculum, its organization, and
presentation shall be submitted on
Form SBTS-610 for the approval of
the Commissioner and the State
Superintendent of Public Instruction.
In addition, lesson plans for each of
the 30 hours must be submitted.
(ii) Textbooks for use in the classwork
section shall be chosen from those
approved by the State Superintendent
of Public Instruction.
(iii) Instructors must be approved by both
the Commissioner and the State
Superintendent of Public Instruction.
(iv) All expenses incurred in offering and
teaching these courses shall be paid
by the persons enrolled therein or the
school offering the course.
(v) A student may enroll for either the
classroom work or behind-the-wheel
instruction, or both. A school may
accept certification of satisfectory
completion of classroom instruction
from any school authorized to offer
such a course, provided the certificate
(Form SBTS-611A) is signed by the
principal of the public school, or the
superintendent of the administrative
unit of which it is a part, or the
executive ofl^cer of a non-public
secondary school. All SBTS-611A
forms shall be mailed or taken
directly to the high school for
completion by the commercial school
owner or instructor. Under no
circumstances shall the form be given
to the student.
(vi) Schools offering this course shall
issue to their students upon
satisfactory completion of either or
both parts of the course a certificate
furnished by the Division (Form
SBTS-611). This certificate verifies
only the training taught by the
commercial school. The student's
name on this certificate must be as it
appears on his birth certificate.
Schools shall be accountable to the
Division for all certificates issued to
them.
(vii) The student, upon submitting
certification of satisfactory completion
of both parts of the driver education
course, shall be eligible for licensing
as provided by law. Such
certification may be from either or
both a public or non-public secondary
school or a commercial driver training
school.
(viii) Schools shall submit reports to the
Division, as may be required by the
Division; and their books and records
shall be open to inspection by
Division representatives at ail
reasonable times.
(e) A person satisfactorily completing the
thirty and six hour course who desires
additional training may contract for any
portion of the six-hour behind-the-wheel
instruction.
(4) For licensed persons taking a course
offered by a restricted commercial driver
training school, the following courses are
authorized:
(a) curriculum for evaluation and
improvement for licensed adult drivers
only, utilizing over-the-road observation
in vehicles not owned by the school or
equipment such as driving simulators;
(b) professional curricula, including one or
more of the following:
(i) police pursuit driving,
(ii) auto-cross driving,
(iii) emergency-vehicle driving, or
(iv) road and track racing.
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PROPOSED RULES
(5) Instructor training program, the
requirements for which are:
(a) the school must be licensed one full
year prior to approval;
(b) all work must be with an instructor
licensed as an Instructor Trainer;
(c) a proposed plan of operation must be
submitted to the Division outlining the
training schedule, including instruction
in:
(i) using effective teaching methods,
(ii) writing lesson plans,
(iii) reviewing of Rules Governing the
Licensing of Commercial Driver
Training Schools and Instructors,
(iv) using audio visual equipment and
teaching aids,
(v) filling out fully and properly all
commercial school forms, and
(vi) listing names of Instructor Trainers to
be employed for the training program.
Statutory Authority G. S. 20-322 through 20-324.
SECTION .0500 - REQUIREMENTS AND
APPLICATIONS FOR DRIVER
TRAINING INSTRUCTOR
.0501 REQUIREMENTS
(a) Each instructor of a commercial driver
training school or branch shall:
(1) be of good moral character;
(2) have at least four years of experience as
a licensed operator of a motor vehicle;
(3) not have been convicted of a felony or
convicted of a misdemeanor involving
moral turpitude in the 10 years
immediately preceding the date of
application;
(4) not have had a revocation or suspension
of his driver's license in the five fe«f
years immediately preceding the date of
application^ and not have had a
revocation or suspension for DWI for a
period of seven years ;
(5) have graduated from high school or
hold a high school equivalency
certificate;
(6) not have had convictions for moving
violations totaling five seven or more
points in the three years preceding the
date of application;
(7) have completed the 80-contact-hour,
community-college course for driver
education teachers; an equivalent course
approved by the Commissioner, or an
Instructor Trainer Program conducted
by an approved Commercial Driver
Training School within four years prior
to application ;
(8) successfully complete the written test
administered by a Driver Education
Specialist; (Allowed only one retest);
(9) successfully complete the Miller Road
Test given by a Driver Education
Specialist; (Allowed only one retest);
(10) be given a three month probation period
until evaluated and recommended by a
Driver Education Specialist;
(11) submit a criminal background check
from the Clerk of Court for each
county of residence for the past ten
years .
(b) An applicant may apply for an instructor's
learner's permit which would be valid for three
months. To be eligible for an instructor's
learner's permit, the applicant shall meet
requirements Subparagraph (a) (1) through (6); and
shall:
(1) submit an Instructor Application with
an eight dollar ($8.00) application fee,
copy of high school diploma or high
school equivalency certificate, and
physical examination form;
(2) successfully complete 40 hours of
classwork as a student at an approved
commercial driver training school to
consist of:
(A) 30 hours in the basic driver education
classwork;
(B) an additional 10 hours in practice
teaching. writing lesson plans,
reviewing the rules of this
Subchapter, use of audio visual
equipment and teaching aids and
familiarization of commercial school
forms;
(3) successfully complete six hours of
behind-the- wheel training as a student
at an approved commercial driver
training school;
(4) successfully complete six hours of
observation of behind-the-wheel
instruction of a new driver by a
licensed instructor trainer;
(5) successfully complete the written test
administered by a Driver Education
Specialist; (Allowed only one retest);
(6) successfiilly complete the Miller Road
Test given by a Driver Education
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PROPOSED RULES
Specialist; (Allowed only one retest);
(7) after completing Subparagraphs (b) (1)
through (6) practice teach in the
presence of an instructor trainer;
(8) successfiilly complete two hours of
classroom instruction while being
observed by a Driver Education
Specialist;
(9) successfully complete two hours of
behind-the-wheel instruction while
being observed by a Driver Education
Specialist;
(10) be recommended by a Driver Education
Specialist to receive an instructor's
license.
(c) An instructor at an approved commercial
driver training school may apply for an Instructor
Trainer license. The Instructor Trainer shall:
(1) have five consecutive years as an active
licensed instructor;
(2) submit an application for Instructor
Trainer License with a fee of eight
dollars ($8.00);
(3) complete two hours of classroom
observation by a Driver Education
Specialist while training instructors, not
driver education student;
(4) complete two hours of behind-the-wheel
observation by a Driver Education
Specialist while training instructors, not
driver education students;
(5) successfully complete the written test
administered by a Driver Education
Specialist; (Allowed only one retest);
(6) successfully complete the Miller Road
Test given by a Driver Education
Specialist; (Allowed only one retest);
(7) be recommended by a Driver Education
Specialist;
(8) requalify each school year.
Statutory Authority G. S. 20-322 through 20-324.
.0503 RENEWAL APPLICATION
(a) Renewal application shall be made by an
instructor annually between May 1 and June 10 of
each year. All licenses expire on June 30 of each
year, and no instructor is permitted to operate with
an expired license. However, applications for
renewal may be accepted for up to 30 days from
the date of expiration. Any license expired for
more than 30 days shall be deemed permanently
lapsed; and renewal of such license must be by the
same process as required for an entirely new
license, with all forms and certifications being
required.
(b) At least once every four years, an instructor
must take the two-semester-hour college credit
course required for the original license; provided,
however, that an equivalent number of hours (64)
(40) can be substituted for this course in the
following manner:
(1) 16 +3 hours (four three for each full
year of the four years) for active and
continuing teaching of driver education;
(2) 48 38 or more hours for attendance at
teacher training workshops and short
courses, professional driver training
meetings and conferences in the field of
driver education which have been
approved in advance by the School Bus
and Traffic Safety Section. Approval is
to be given in the following manner:
(A) Pre-Course (submit for approval):
(i) name and address of agency
sponsoring the workshop, course
or conference;
(ii) title, dates, and location of the
workshop, course, or conference;
(iii) brief description of the workshop,
course, or conference, including
the number of hours;
(B) Post-Course (submit for approval and
credit) :
(i) proof of attendance, number of
contact hours actually attended,
and passing grade (if applicable);
(ii) brief evaluation of the workshop,
course, or conference.
(c) An accredited driver education teacher with
a current certificate based on the requirements of
the Department of Public Instruction is exempted
from the requirements of Paragraph (b) of this
Rule.
Statutory Authority G. S. 20-322 through 20-324.
SECTION .0600 - COIVTRACTS
.0601 REQUIREMENTS
Commercial driver training school contracts with
students shall contain (but are not limited to) the
following information:
(1) the agreed total contract charges and full
terms of payment thereof;
(2) the number, nature, time and extent of
lessons contracted for, including:
(a) classroom instruction:
(i) rate per hour;
(ii) date and time of first lesson and each
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94
PROPOSED RULES
(iii)
subsequent lesson, the length of each
lesson, and the total number of hours;
type of instruction;
(i)
(ii)
(iii)
(iv)
(b) behind-the-wheel instruction:
rate per hour;
date and time of first lesson and each
subsequent lesson, the length of each
lesson, and the total number of hours;
nature of lessons, whether private or
group (no group may consist of more
than the instructor and two students);
rate for use of school vehicle for a
driver's license road test, if an extra
charge is made;
(3) a statement which reads substantially as
follows: "This agreement constitutes the
entire contract between the school and
the student, and any verbal assurances or
promises not contained herein shall bind
neither the school nor the student."^ and
(4) a statement which reads as follows:
"This school is licensed by the State of
North Carolina, Division of Motor
Vehicles."
If either the school or the instructor fails to
comply with the provisions of any contract or
agreement between the school and the student, the
school shall refund, on a qto rata basis, all monies
collected from the student as consideration for the
performance of the contract or the agreement.
Statutory Authority G. S. 20-322 through 20-324.
.0602 PROfflBITED CONTRACT
PROVISIONS
{a) Commercial driver training school contracts
shall not contain the following:
(1) the statement "no refund" or its
equivalent; The contract may, however,
contain a statement that "The school will
not refund any tuition monies or any part
thereof when actual services have been
rendered";
(2) any statement to the effect that a driver's
license is guaranteed or otherwise
promised as a result of the driver's
license training course.
^fe) — If e ither th e school or th e inetructor fails to
comply with the provisions of any oontraot or
agr e ement between the s chool and th e stud e nt, th e
school shall refund, on a pro rata basis, all moni e s
coll e ct e d from th e student as oonsid e mtion for th e
p e rformanc e of the contract or th e agr e em e nt.
Statutory Authority G. S. 20-322 through 20-324.
SECTION .0700 - BONDING
AND ADVERTISING
.0701 BONDS
Prior to license approval, a school shall file with
the Division a continuous "cash" or "surety" bond
written by a company licensed to do business in
North Carolina in the amount of five thousand
dollars ($5, (XX)) two thousand fiv e hundred dollars
($2,500) to indemnify any student against loss or
damage arising out of the school's breach of
contract between the school and the student (Form
SBTS-606).
Statutory Authority G.S. 20-322 through 20-324.
.0703 ADVERTISING
A commercial driver training school may
advertise by whatever method it sees fit with the
following exceptions:
(1) The address of a telephone-answering
service, when it is not the same as the
principal place of business of the school,
shall not be shown in any medium of
advertising or telephone directory. Nor
shall any telephone directory listing or
yellow page advertisement show a
telephone number for a school unless it
also shows a valid address^ including the
city, for the principal place of business of
the school.
(2) No advertisement shall indicate in any
way that a school can or will issue or
guarantee the issuance of a driver's
license, or imply that preferential or
advantageous treatment from the Division
can be obtained.
(3) A school may state in an advertisement
that it has been approved and licensed by
the Division.
Statutory Authority G.S. 20-322 through 20-324.
TITLE 21 - OCCUPATIONAL
LICENSING BOARDS
CHAPTER 26 - LICENSING BOARD
OF LANDSCAPE ARCHITECTS
ISotice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Board of
Landscape Architects intends to amend rule cited
as 21 NCAC 26 .0105.
95
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NORTH CAROLINA REGISTER
April 15, 1994
PROPOSED RULES
The proposed effective date of this action is July
1. 1994.
Ihe public hearing will be conducted at 10:00
a.m. on May 2, 1994 at the N. C. Board of Land-
scape Architects, 3733 Benson Drive, Raleigh, NC
27609.
Reason for Proposed Action: Raise fees to cover
costs.
i^omment Procedures: Written convnent must be
submitted up to and including May 16, 1994 to the
N. C. Board of Landscape Architects, 3733 Benson
Drive, Raleigh, NC 27609.
SECTION .0100 -STATUTORY AND
ADMINISTRATIVE PROVISIONS
.0105 FEES
(a) Application fees shali be as follows:
(1) For registration as a Landscape Archi-
tect - one hundred dollars ($100.00).
(2) For corporate certificate of registration
- one hundi^ dollars ($100.00).
(b) The Certificate of Permit for a temporary
permit shall be one hundred fifty dollars
($150.00).
(c) Examination fees shall be thre e hundr e d
ninety fiv e dollaro ($395.00) four hundred fifty
dollars ($450.00) for a complete examination, and
shall be paid prior to the examination.
(d) Fees for portions of examinations will be
based on the actual charges to the board for pro-
curing, administering and grading the portion of
the exam. The fees shall be paid prior to the
examination.
(e) The fee for license by reciprocity shall be
one hundred fifty dollars ($150.00).
(f) The fee for a corporate certificate of registra-
tion shall be two hundred dollars ($200.00).
(g) The fee for the annual renewal of any
certificate of registration shall be s e v e nty — fij.«
dollars ($75.00) one hundred dollars ($100.00) .
(h) Annual renewal fees received after July 1 of
each year shall be subject to the assessment of a
late payment penalty according to the following
schedule:
(1) After July 1 - ten dollars ($10.00);
(2) After September 1 - fifteen dollars
($15.00);
(3) After October 1 - twenty dollars
($20.00);
(4) After November 1 - twenty five dollars
($25.00);
(5) After December 1 - thirty dollars
($30.00);
(6) After January 1 - thirty five dollars
($35.00);
(7) After February 1 - forty dollars
($40.00);
(8) After March 1 - forty five dollars
($45.00);
(9) After April 1 - fifty dollars ($50.00).
(i) The fee for re-issue of a lost or damaged
certificate or permit is ten dollars ($10.00).
Statutory Authority G.S. 89A-3(c); 89A-6.
CHAPTER 50 - BOARD OF EXAMINERS
OF PLUMBING, HEATING AND FIRE
SPRINKLER CONTRACTORS
Jylotice is hereby given in accordance with G.S.
150B-21.2 that the State Board of Examiners of
Plumbing, Heating and Fire Sprinkler Contractors
intends to amend rule cited as 27 NCAC 50 .0306;
and adopt rule cited as 21 NCAC 50 .1104.
Ihe proposed effective date of this action is
August 1, 1994.
Ihe public hearing will be conducted at 8:30
a.m. on June 8, 1994 at the State Board of Exam-
iners of Plumbing, Heating and Fire Sprinkler
Contractors, 801 Hillsborough St., Suite 403,
Raleigh, NC 27603.
Reason for Proposed Action:
21 NCAC 50 .0306 - To clarify type and extent of
practical experience required of applicant for
examination.
21 NCAC 50 .1104 - To recover cost of providing
documents and returned checks.
(comment Procedures: Persons wishing to present
oral data, views or argument on a proposed rule
or rule change may file a notice with the Board at
least 10 days prior to the public hearing at which
the person wishes to speak. Comments should be
limited to 10 minutes. The address of the Board is
801 Hillsborough St., Suite 403, Raleigh, N.C.
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96
PROPOSED RULES
Written comments or arguments may be presented
at any time before June 8, 1994.
SECTION .0300 - EXAMEVATIONS
.0306 APPLICATIONS: ISSUANCE OF
LICENSE
(a) All applicants for regular examinations shall
file an application in the office of the executive
secretary on or before the date set out on the
examination application form, which date shall be
no more than 60 days prior to the examination.
(b) Applicants for the October 1990 each plumb-
ing or heating examination shall present evidence
at the time of application on forms provided by the
Board to establish six months two years on-site
full-time experience in the installation, mainte-
nance, service or repair of plumbing or heating
systems related to the category for which license is
sought, whether or not license was required for the
work performed. On e y e ar of exp e ri e nc e will b e
requir e d of applicant for th e April 1991 e xamina
tions, 18 months e xp e ri e nc e for th e Octob e r 1991
e xamination, and two yoaro of exporiono e for th e
April 1992 e xamination and e xaminations conduct
e d th e reaft e r. After review, the Board may re-
quest additional evidence. Up to one-half the
experience may be in academic or technical train-
ing directly related to the field of endeavor for
which examination is requested. The Board will
pro rate part-time work of less than 40 hours per
week or part-time academic work of less than 15
semester or quarter hours. Practical experience
should directly involve plumbing or heating sys-
tems and may include work as a field superinten-
dent, project manager, journeyman, mechanic or
plant stationary operator directly involved in the
installation, maintenance, service or repair of such
systems. Work as a local government inspector of
plumbing or heating systems while qualified by the
Code Officials Qualification Board, work as a field
representative of this Board or work by a graduate
of an ABET accredited engineering or engineering
technology program with direct on-site involve-
ment with plumbing or heating system construc-
tion, construction supervision, plant engineering or
operation may utilize such work as evidence of
practical experience; provided that Board members
and employees may not sit for examination during
their tenure with the Board.
(c) Applicants who obtain a license will receive
a certificate issued by the Board, bearing the
license number assigned to the qualifying individu-
al.
(d) Fire Sprinkler contractors will meet experi-
ence requirements in accordance with Nicet exami-
nation criteria.
Statutory Authority G.S. 87-18; 87-21 (b).
SECTION .1100 -FEES
.1104 FEES FOR COPIES OF RECORDS
AND RETUIWED CHECKS
The Board charges the following fees:
(1) copy of the Register of Licensees ; ^
4.00 each
12}
ill
i4j
copies of license ; 15.00
abstract of license record
15.00
processing fee for returned checks ^
20.00
Statutory Authority G.S. 25-3-512; 87-18;
150B-19.
* * *
CHAPTER 54 - BOARD OF PRACTICING
PSYCHOLOGISTS
jyiotice is hereby given in accordance with G.S.
150B-21.2 that the North Carolina Psychology
Board intends to adopt rules cited as 21 NCAC 54
.2701 - .2703.
1 he proposed effective date of this action is July
1. 1994.
1 he public hearing will be conducted at 11:00
a.m. on May 2, 1994 at the Lucy D. Inman Con-
ference Room, 1004 Dresser Court, Ste. 105,
Raleigh, N. C.
Mxeason for Proposed Action:
21 NCAC 54 .2701 - To define health services.
21 NCAC 54 .2702 - To set requirements for
making application as a health service provider
prior to June 30, 1994.
21 NCAC 54 .2703 - To require display of certifi-
cate.
i^omment Procedures: Comments may be submit-
ted in writing or in person at the public hearing or
in writing prior to May 17, 1994 to Martha Storie,
Executive Director, N. C Psychology Board,
University Hall, Appalachian State University,
Boone. NC 28608.
97
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PROPOSED RULES
hiditor's Note: Rule .2701 was filed as a tempo-
rary rule effective April 20, 1994 for a period of
180 days or until the permanent rule becomes
effective, whichever is sooner Rule .2702 was
filed as a temporary rule effective April 20, 1994
for a period of 70 days.
SECTION .2700 - HEALTH SERVICES
PROVIDER CERTIFICATION
,2701 ACTIVITIES INCLUDED
(a) Health services in psychology include the
diagnosis, evaluation, treatment, remediation, and
prevention of: mental, emotional, and behavioral
disorder, disability, and illness; substance abuse:
habit and conduct disorder; and psychological
aspects of physical illness, accident, injury, and
disability. Included are counseling, psycho-
educational, and neuropsychological services
related to the above. Health services include
collateral contacts by a psychologist with families,
caretakers, and other professionals for the purpose
of benefiting a patient or client of that psycholo-
gist, as well as, direct services by a psychologist
to individuals and groups.
(b) Health services in psychology do not include
vocational and educational guidance, the teaching
of psychology, the conduct of psychological
research, or the provision of psychological services
or consultations to organizations or institutions.
Statutory Authority G.S. 90-270. 2(4)(8); 90-270.9.
.2702 REQUIREMENTS BEFORE JUNE 30,
1994
£§1 To be certified as a health services provider
psychologist (HSP-P), licensed psychologists
holding permanent North Carolina licensure must
provide documentation that verifies one of the
following conditions:
(1) The applicant is currently listed in the
National Register of Health Services
Providers in Psychology.
(2) The applicant ]s a diplomate m good
standing of the American Board of
Professional Psychology, except for
diplomates in industrial-organizational
psychology.
(3) The applicant has the equivalent of two
years of full-time experience, as fol-
lows:
(A) Two years of experience are defined
as 3000 hours of practice of which
more than 50% was comprised of
activities meeting the definition in
Rule .2701(a) in this Section, with the
remainder comprised of other forms
of psychological practice (such as
teaching and research), or other activ-
ities associated with a psychology
position (such as administration).
(B) One year of predoctoral internship
may be counted, but other predoctoral
experience (such as practica) will not
be counted.
(C) At least one of these years must be
postdoctoral.
(D) Experience which will not be counted
includes, but is not limited to. experi-
ence which was associated with termi-
nation from a position or major disci-
plinary action against the applicant
due to negligence, lack of compe-
tence, or unethical conduct.
£b} To be certified as a health services provider
psychological associate (HSP-PA). licensed psy-
chological associates holding North Carolina
licensure must provide documentation which
verifies that the applicant has the equivalent of two
years of full-time experience, supervised when
as follows:
required.
m
Two years of experience are defined as
3(X)Q hours of practice of which more
than 50% was comprised of activities
meeting the definition in Rule .2701(a)
in this Section, with the remainder
comprised of other forms of psycholog-
ical practice (such as teaching and
research) . or other activities associated
with a psychology position (such as
administration).
(2) One year of graduate level internship
may be counted, but other graduate
level experience (such as practica) will
not be counted.
(3) At least one of these years must be at a
post-graduate degree level.
(4) Experience which will not be counted
includes, but is not limited to. experi-
ence which was associated with termi-
nation from a position or major disci-
plinary action against the applicant due
to negligence, lack of competence, or
unethical conduct.
(c) The following documentation must be com-
pleted and received in the Board's office prior to
June 30, 1994:
(1) for all applicants, a completed, nota-
rized application form provided by the
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98
PROPOSED RULES
Board and payment of the fifty dollars
($50.00) fee;
(2) for applicants applying under Subpara-
graph (a)(1) of this Rule, a letter from
the National Register of Health Services
Providers in Psychology which verifies
the applicant's current listing in the
Register;
(3) for applicants applying under Subpara-
graph (a)(2) of this Rule, a letter from
the American Board of Professional
Psychology which verifies good stand-
ing diplomate status;
(4) for applicants applying under Subpara-
graph (a)(3) or Paragraph (h) of this
Rule, a listing of experience on the
application form which satisfies the
requirement.
Statutory Authority G. S. 90-270. 9; 90-270. 20(e)(f).
.2703 DISPLAY OF CERTIFICATE
A health services provider certificate shall be
displayed in close proximity to a licensee's licen-
sure certificate in his/her principal place of em-
ployment and in a place that is visible to the
licensee's served clientele.
Statutory Authority G.S 90-270.9; 90-270.20.
TITLE 24 - INDEPENDENT AGENCIES
CHAPTER 5 - STATE HEALTH
PLAN PURCHASING
ALLIANCE BOARD
i\otice is hereby given in accordance with G.S.
150B-21.2 that the State Health Plan Purchasing
Alliance Board intends to adopt rules cited as 24
NCAC 5 .0101 - .0102. .0200 RESERVED and
.0301 - .0303.
1 he proposed effective date of this action is July
1. 1994.
1 he public hearing will be conducted at 10:00
a.m. on Tuesday, May 17, 1994 at the Department
of Insurance Annex, Hearing Room, 112 Cox
Avenue, Raleigh, NC 27605.
iXeason for Proposed Action: Recently passed
legislation (House Bill 729 as ratified) which is
Article 66 of Chapter 143 and which requires
certain rules to be in place by July 1 , 1994.
(comment Procedures: Written comments may be
submitted to the Board either orally at the hearing
or by writing to the Board and received no later
than May 17, 1994. Written comments should be
directed to: Robert F. Joyce, Executive Director,
112 E. Hargett Street, Suite 101, Raleigh, NC
27601.
hiditor's Note: These Rules were filed as tempo-
rary adoptions effective April 22, 1994 for a
period of 180 days or until the permanent rule
becomes effective, whichever is sooner.
SECTION .0100 - COMMUNITY
SPONSORS
.0101 PURPOSE
These Rules implement the provisions of Article
66 of Chapter 143 of the General Statutes of North
Carolina, Health Care Purchasing Alliance Act, as
they relate to community sponsors.
Statutory Authority G.S 143-626; 143-629; H.B.
729, Article 66, ch. 143.
.0102 SELECTION
(a) Board Solicitation of Proposals for Commu-
nity Sponsors. The Board may begin to solicit
proposals on April 22. 1994. from any eligible
organization interested in serving as a community
sponsor of a health alliance (hereafter "alliance").
(h) Organizations Eligible. Non-profit organiza-
tions operating for the purpose of furthering
economic opportunities for small businesses shall
be eligible to submit community sponsorship
proposals.
(c) Public Notice. The Board shall solicit
proposals through newspapers, other public media,
and by any other sufficient means U deems appro-
priate.
(d) Time Period for Proposal. The Board shall
allow 120 days for submission of initial proposals
after April 22. 1994.
(e) Information in Proposals. Each organization
submitting a proposal shall include the following
information:
(1) a brief history of the sponsoring organi-
zation and a narrative describing the
strengths in its ability to establish an
alliance;
99
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NORTH CAROLINA REGISTER
April 15, 1994
PROPOSED RULES
(2) an explanation of any proposed coali-
tion with other organizations, and if a
proposed community sponsorship is to
be held jointly by two or more organi-
zations, the proposal shall specify the
physical location for the alliance and
the division of responsibilities among
organizations:
(3) demonstration of an understanding of
the function served by an alliance under
Article 66 of Chapter 143 of the Gener-
al Statutes of North Carolina;
(4) a plan for solicitation and development
of membership for an alliance and
proper communication with member
small employers;
(5^ letters of support from small businesses
and other groups supporting the
organization's bid to be the community
sponsor of an alliance;
(6) a proposed market area to be served by
the alliance and appropriate rationale
for the counties within that market area,
such rationale to include the factors
listed in G.S. 143-626(1);
(7") a timetable for accomplishment of the
following tasks regarding the proposed
alliance:
(A) formation of the alliance as a private,
non-profit corporation, appointment of
its Board members, adoption of its
by-laws and rules of procedure:
(B) appointment of an executive
director/ administrator, employment of
staff and/or contractual arrangement
with third parties for administrative
and professional services:
(C) receipt of state grant funds for start-
up costs, purchase of office equipment
and supplies:
(D) development of procedures for
enrollment, for collecting/remitting
premium payments. and for
communication with member small
employers:
(E) negotiation and development of
contracts with Accountable Health
Carriers;
(F) enrollment goals and dates; and
£G} initial enrollment in an alliance's
qualified health care plans;
(8) an annual budget and table of
organization for the proposed alliance.
(f) Board Approval :
(1) The Board shall either approve.
disapprove or seek further information
on proposals within 60 days after the
deadline for submitting proposals. The
Board may re-advertise for new and
additional proposals. Timelines for
submission of new proposals and Board
action on these proposals shall be the
same as those established for initial
requests under this Section; and
(2) After review of the information
provided under Paragraph (e) and
Subparagraph (f)(1) of this Rule, the
Board shall evaluate the proposal based
on an eligible organization's
demonstrated understanding of the
function and operation of the alliance,
the ability to provide an alliance
structure which will encourage small
business employers to become
members, and the appropriateness of
the proposed market area.
Statutory Authority G.S. 143-626; 143-629; H.B.
729, Article 66, cfi. 143.
SECTION .0200 - ALLIANCES
(RESERVED FOR FUTURE
CODIFICATION)
SECTION .0300 ACCOUNTABLE
HEALTH CARRIERS
.0301 PURPOSE
These Rules implement the provisions Article 66
of Chapter 143 of the General Statutes of North
Carolina. Health Care Purchasing Alliance Act, as
they relate to Accountable Health Carriers.
Statutory Authority G.S 143-626; 143-629; H.B.
729, Article 66, ch. 143.
.0302 DESIGNATION PROCESS
(a) Board Review. The Board may begin to
review information on April 22, 1994, from any
eligible carrier interested in being designated as an
Accountable Health Carrier.
(b) Carrier Seeking Designation. A carrier
seeking designation as an Accountable Health
Carrier for the purpose of offering qualified health
care plans through any alliance established
pursuant to Article 66 of Chapter 143 of the
General Statutes of North Carolina must fulfill the
requirements outlined in G.S. 143-629.
(c) Designation and Accreditation Requirements.
A carrier submitting an application (hereinafter ^
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NORTH CAROLINA REGISTER
April 15, 1994
100
PROPOSED RULES
carrier") to the Board for designation as an
Accountable Health Carrier for any type of
qualified health care plan must meet the following
requirements:
(1) presentation of a copy of Its current
license or certificate of authority issued
by the NC Department of Insurance
fhereinafter "the Department") and
appearance on the Department's current
list of carriers with such license or
certificate of authority;
submit a current financial statement
m
Q}
lAl
mi
regarding its financial solvency verified
by the Department of Insurance; and
fulfill the requirements in G.S. 143-
629(b)(2)-(10). To fulfill these
requirements, a carrier may:
complete forms, developed by the
Board upon recommendation of the
Designation Review Technical
Advisory Committee (hereinafter "the
Committee"), which specify the
relevant information pertaining to any
or all of the criteria in G.S. 143-
629(b)(2)-(10). After review of such
information, the Board shall make a
determination regarding the carrier's
fulfillment of the criteria at issue, or
the Board shall require a hearing
before the Committee. After such
hearing, the Committee shall provide
a formal written recommendation to
the Board regarding approval or
disapproval of a carrier's fulfillment
of the criteria at issue;
submit for the requirements in G.S.
143-629(b)(2)-(8) appropriate
accreditation certification from the
National Committee on Quality
Assurance and/or the Joint
Commission on Accreditation of
Health Care Organization, and/or
qualification by the United States
Department of Health and Human
Services and/or accreditation
other
certification from
any
accreditation organization approved
by the Department pursuant to G.S.
143-629;
(C) submit for the requirement in G.S.
143-629(b)(5) accreditation
certification from the Utilization
Review Accreditation Commission;
and
(D) submit for the requirements in G.S.
143-629(l3)(9)-(10) the required data
elements in a format identical or
substantially similar to ^^e Health
Plan Employer Data and Information
Set ("HEDIS").
(d) Board Evaluation. The Board shall either
approve, disapprove or seek further information on
a designation request within 60 days of the receipt
of information under Paragraph c or within 60
days after the Committee holds a hearing under
Subpart c3(A) of this Rule.
(e) Annual Report. Every Accountable Health
Carrier shall, on or before the first day of April of
each year, file with the Board a sworn statement
by an authorized officer showing its current status
regarding the criteria required for designation as
described in this Section. In the event any
Accountable Health Carrier shall fail to file any
such annual statement or such annual statement
shows a lack of substantial compliance with the
designation criteria, the Board may suspend the
carrier's designation as an Accountable Health
Carrier until such statement shall be properly filed.
Statutory Authority G.S. 143-626; 143-629; H.B.
729. Article 66, ch. 143.
.0303 DESIGNATION REVIEW
TECHNICAL ADVISORY
COMMITTEE
(a) Composition. The Committee will consist of
the Executive Director of the Board or designee,
serving as Chairman; two representatives from the
North Carolina Department of Insurance; and two
individuals, appointed by the Chairman of the
Board, who are knowledgeable about the
accreditation process for health insurance carriers.
(b) Meetings. Within 30 days after receipt of a
request for a hearing, the Chairman of the
Committee shall set a time and date for the
hearing. With reasonable notice, the Committee
may request additional relevant information from
an applicant to be submitted before, at the time of.
or after the hearing.
Statutory Authority G.S. 143-626; 143-629; H.B.
729, Article 66, ch. 143.
.0304 DESIGNATION FORMS FOR
ACCOUNTABLE HEALTH
CARRIERS (RESERVED FOR
FUTURE CODIFICATION)
101
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RRC OBJECTIONS
1 he Rules Review Commission (RRC) objected to the following rules in accordance with G.S.
143B-30.2(c). State agencies are required to respond to RRC as provided in G.S. 143B-30.2(d).
COMMERCE
Banking Commission
4 NCAC 3F .0202 - Permissible Investments
Agency Responded
Agency Revised Rule
Credit Union
4 NCAC 6C .1401 - Signature Guarantee
Agency Revised Rule
ENVIRONMEI^, HEALTH, AND NATURAL RESOURCES
Marine Fisheries
15A NCAC 31 .0010 - Military Prohibited and Restricted Areas
Agency Revised Rule
15A NCAC 3J .0107 - Pound Nets
Agency Revised Rule
15A NCAC 3K .0301 - Size and Harvest Limit
Agency Revised Rule
15 A NCAC 30 .0102 - Procedure and Requirements to Purchase License
Agency Revised Rule
15A NCAC 30 .0204 - Marking Shellfish Leases and Franchises
Agency Revised Rule
15A NCAC 30 .0205 - Lease Renewal
Agency Revised Rule
Soil and Water Conservation Commission
15A NCAC 6F .0001 - Purpose
Agency Revised Rule
15 A NCAC 6F .0003 - Requirements for Certification of Vhste Mgmi Plans
Agency Revised Rule
15A NCAC 6F .0004 - Approved Best Management Practices (BMPs)
Agency Revised Rule
15A NCAC 6F .0005 - Technical Specialist Designation Procedure
Agency Revised Rule
Wildlife Resources and Water Safety
15A NCAC WD .0002 - General Regulations Regarding Use
Agency Withdrew Rule
RRC Objection 12/16/93
Obj. Cont'd 01/20/94
Obj. Removed 02/17/94
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
02/17/94
02/17/94
02/17/94
02/17/94
02/17/94
02/17/94
02/17/94
02/17/94
02/17/94
02/17/94
02/17/94
02/17/94
02/17/94
02/17/94
02/17/94
02/17/94
02/17/94
02/17/94
01/20/94
02/17/94
01/20/94
02/17/94
03/17/94
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102
RRC OBJECTIONS
HUMAN RESOURCES
Aging
10 NCAC 22T .0101 - Scope of Health Screening Services
Agency Revised Rule
10 NCAC 22T .0201 - Provision of Health Screening Services
10 NCAC 22U .0101 - Scope of Senior Companion
Agency Revised Rule
10 NCAC 22W .0101 - Scope of Home Care Services
Agency Revised Rule
Medical Assistance
10 NCAC 261 . 0304 - Hearing Procedures
Agency Revised Rule
mSURANCE
Financial Evaluation Division
U NCAC lie .0308 - Foreign HMO: Successful Operation
Agency Revised Rule
11 NCAC IIF .0207 - Specific Standards for Morbidity, Interest and Mortality
Agency Revised Rule
11 NCAC 1 IF .0208 - Reserves for Wiiver of Premium
Agency Revised Rule
LICENSING BOARDS AND COMMISSIONS
Certified Public Accountant Examiners
21 NCAC 8 A .0105 - Purposes and Responsibilities
Agency Repealed Rule
21 NCAC 8F .0103 - Filing of Examination Applications and Fees
Agency Revised Rule
21 NCAC 8F .0112 - Candidate's Request to Sit in Another Jurisdiction
Agency Revised Rule
21 NCAC 8G .0409 - Computation of CPE Credits
Agency Revised Rule
21 NCAC 81 .0008 - Firm Registration
Agency Revised Rule
21 NCAC 8N .0103 - CPAs Outside North Carolina
Agency Withdrew Rule
Landscape Architects
21 NCAC 26 .0209 - Unprofessional Conduct
Agency Revised Rule
21 NCAC 26 .0210 - Dishonest Practice
Agency Revised Rule
21 NCAC 26 .0211 - Incompetence
Agency Revised Rule
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
01/20/94
02/17/94
01/20/94
02/17/94
01/20/94
02/17/94
02/17/94
03/17/94
03/17/94
03/17/94
03/17/94
03/17/94
03/17/94
03/17/94
03/17/94
03/17/94
03/17/94
03/17/94
03/17/94
03/17/94
03/17/94
03/17/94
03/17/94
03/17/94
03/17/94
03/17/94
03/17/94
01/20/94
02/17/94
01/20/94
02/17/94
01/20/94
02/1 7/94
103
9:2
NORTH CAROLINA REGISTER
April 15, 1994
RRC OBJECTIONS
Medical Examiners
21 NCAC 32B .0402 - Fee
Agency Revised Rule
21 NCAC 32B .0706 - Fee
Agenq,' Revised Rule
21 NCAC 32M .0006 - Prescribing Privileges
Agency Revised Rule
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
03/17/94
03/17/94
03/17/94
03/17/94
02/17/94
02/17/94
REAL ESTATE APPRAISAL BOARD
21 NCAC 57 A . 0210 - Temporary Practice
Agency Revised Rule
21 NCAC 57B . 0207 - Administration
Agency Revised Rule
21 NCAC 57B .0306 - Instructor Requirements
Agency Revised Rule
21 NCAC 57B .0603 - Criteria For Course Approval
Agency Revised Rule
21 NCAC 57C .0104 - Petition to Reopen Proceeding
Agency Revised Rule
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
RRC Objection
Obj. Removed
03/17/94
03/17/94
03/17/94
03/17/94
03/17/94
03/17/94
03/17/94
03/17/94
03/17/94
03/17/94
REVENUE
Individual Income Tax Division
17 NCAC 6B .0612 - Tax Credit for Qualified Business Investments
Agency Revised Rule
RRC Objection
Obj. Removed
03/17/94
03/17/94
STATE PERSONNEL
Office of State Personnel
25 NCAC ID .0211 - Salary Rate RRC Objection 02/17/94
Agency Revised Rule Obj. Removed 02/1 7/94
25 NCAC ID .0512 - Policy Making/Conjidential Exempt Priority Consideration RRC Objection 02/17/94
Agency Revised Rule Obj. Removed 03/1 7/94
STATE TREASURER
Collateralization of Deposits
20 NCAC 7 .0202 - Amount of Collateral Required to be Pledged
Agency Revised Rule
20 NCAC 7 .0603 - Acceleration of Maturities
Agency Revised Rule
RRC Objection 03/17/94
Obj. Removed 03/17/94
RRC Objection 03/17/94
Obj. Removed 03/17/94
9:2
NORTH CAROLINA REGISTER
April 15, 1994
104
CONTESTED CASE DECISIONS
1 his Section contains the full text of some of the more significant Administrative Law Judge decisions
along with an index to all recent contested cases decisions which are filed under North Carolina's
Administrative Procedure Act. Copies of the decisions listed in the index and not published are available
upon request for a minimal charge by contacting the Office of Administrative Hearings, (919) 733-2698.
AGENCY
CASE
NUMBER
ALJ
DATE OF
DECISION
PUBLISHED DECISION
REGISTHt CITATION
ALCOHOLIC BEVERAGE CONTROL COMNOSSION
Alcoholic Beverage Control Comm. v. Entertainment Group, Inc.
Alcoholic Beverage Control Comm. v. Peggy Sutton Walters
Russell BetTianl Speller d/b/a Cat's Disco v. Alcoholic Bev Ctl Comm.
Edwani Ogunjobi. Club Piccadilli v. Alcoholic Beverage Control Comm.
Robert Kovalaske, Nick Pikoulas, Joseph MarshburTi, Evangelos Pikoulas,
d/b/a Our Mom's BBQ v. Alcoholic Bever:age Control Commission
Alcoholic Beverage Control Comm. v. Raleigh Limife, Inc.
COMMERCE
Savings Institutions Division
James E. Byers, et al v. Savings Institutions
CORRECTION
Division of Prisons
Gene Strader v. Department of CotTisction
CRIME CONTROL AND PUBLIC SAFETY
Crime Victims Compensation Commission
James Hugh B^nes v. Crime Victims Compensation Commission
James A. Canady v. Crime Victims Compensation Commission
Virginia Roof v. Department of Crime Control & Public Safety
Mary E. Haskins v. Crime Victims Compensation Commission
93 ABC 0719
Gray
03/02/94
93 ABC 0906
Marm
03/18/94
93 ABC 0937
Morrison
03/07/94
93 ABC 1024
West
03/03/94
93 ABC 1029
Gray
03/04/94
93 ABC 1485
Mann
03/11/94
93 COM 1622 Chess
93 CPS 0801
93 CPS 1108
93 CPS 1347
94 CPS 1406
ENVIRONMENT. HEALTH. AND NATURAL RESOURCES
Coastal Management
Gary E. Montalbine v. Division of Coastal Management 93 EHR 1792
Environmentai Health
Environment, Health, & Natural Res. v. Clark Harris S^ Jessie Lee Harris 93 EHR 0924
Environmental Management
Petroleum Installation Equipment Co., Inc. v. Env., Health &. Nat. Res. 93 EHR 0531
Jack Griffin v. Dept. of Environment, Health, and Natural Resources 93 EHR 1030
Solid Waste Management
Roger Sessoms v. EHNR/ Asbestos Hazard Management Branch
HUMAN RESOURCES
Division of Child Development
Judith Fridley v. Div of Child Development/ Abuse/Neglect Unit 93 DHR 0973
Gloria C. Haith v. Department of Human Resources 93 DHR 1707
03/01/94
94 DOC 0252 Morrison 03/21/94
West 03/28/94
Gray 03/28/94
Nesnow 03/24/94
Gray 03/17/94
Nesnow 03/21/94
Becton 03/03/94
Chess 03/21/94
Becton 03/21/94
93 EHR 095 1 Gray 03/28/94
9:2 NCR 114
Morrison 03/08/94
Nesnow 03/22/94
105
9:2
NORTH CAROLINA REGISTER
April 15, 1994
CONTESTED CASE DECISIONS
AGENCY
Gloria C. Haith v. Daycare Consultant
Charles E. Smith v. Department of Human Resources
Living Woid Day Care, Jonathan LankfonJ v. Dept. of Human Resources
Facility Services
Presbyterian- Orthopaedic Hospital v. Department of Human Resources
Division of Medical Assistance
Division of Medical Assistance v. Catawba Cty Dept. of Social Services
Division of Social Services
Child Enforcement Section
William Heckstall v. Department of Human Resources
Bryan Jeffrey Cole v. Department of Human Resources
Dexter L. Chambers v. Department of Human Resources
Ronald E. Johnson v. Department of Human Resources
Antonio Townsend v. Department of Human Resources
Troy E. Pinkncy v. Department of Human Resources
Walter Lee Corbett v. Department of Human Resources
Nash Andrew Newsome v. Department of Human Resources
Samuel L. Dodd v. Department of Human Resources
JUSTICE
Alarm Systems Licensing Board
Alarm Systems Licensing Boaid v. George P. Baker
Private Protective Services Board
Larry C. Hopkins v. Private Protective Services Boaid
Training and Standards Division
Curtiss Lance Poteat v. Criminal Justice Ed. & Training Stds. Comm.
Glenn Travis Stout v. Criminal Justice Ed. & Training Slds. Comm.
Gregory Blake Mannii^ v. Criminal Justice Ed. & Training Stds. Comm.
PUBLIC EDUCATION
Nancy Watson v. Boaid of Education
Janet L. Wilcox v. Carteret County Boaid of Education
STATE HEALTH BENEFITS OFFICE
Timothy L. Coggins v. Teacheis* & St Erap Comp Major Med Plan
STATE PERSONNEL
Agricultural and Technical State University
Linda D. Williams v. Agricultural and Technical State University
Juanila D. Murphy v. Agricultural and Technical State University
Thomas M. Simpson v. Agricultural and Technical State Univereity
Department of Commerce
Ruth Daniel-fcrry v. Department of Commerce
Department of Correction
Leland K. Williams v. Department of Correction
CASE
DATE OF
NUMBER
ALJ
DECISION
93 DHR 1787
Nesnow
03/14/94
93 DHR 1797
Nesnow
03/21/94
94 DHR 0168
Nesnow
03/23/94
PUBLISHED DECISION
REGISTER CITATION
93 DHR 0805
93 DHR 1778
93 DOJ 0457
93 DOJ 1618
93 DOJ 0231
93 DOJ 1409
94 DOJ 0048
93 EDO 0234
93 EDO 0451
93 INS 0929
93 OSP 0725
91 OSP 1287
Reilly
West
Chess
Chess
03/11/94
03/04/94
93 CSE 1077
Reilly
03/14/94
93CSE 1091
Bee ton
03/30/94
93 CSE 1 124
West
03/28/94
93 CSE 1 125
Becton
03/30/94
93 CSE 1139
Bee ton
03/30/94
93 CSE 1148
Mann
03/29/94
93 CSE 1150
Reilly
03/30/94
93 CSE 1170
Mann
03/17/94
93 CSE 1357
Gray
03/31/94
Nesnow 03/10/94
Morrison 03/07/94
Chess 03/28/94
Gray 03/03/94
Gray 03/29/94
Chess 02/28/94
Mann 02/21/94
Morrison 03/04/94
93 OSP 0089
Chess
03/23/94
93 OSP 0708
Morrison
03/16/94
93 OSP 1393
Gray
03/24/94
03/04/94
02/22/94
9:2 NCR 108
9:1 NCR 63
9:2
NORTH CAROLINA REGISTER
April 15, 1994
106
CONTESTED CASE DECISIONS
AGENCY
CASE
NUMBER
AU
DATE OF
DECISION
PUBLISHED DECISION
REGISTER CITATION
Department of Crime Control and Public Safety
Fred L. Kcamo,' v. Department of Crime Control & Public Safety
Sylvia Nance v. Department of Crime Control & Public Safety
Department of Human Resources
Inez Latta v. Department of Human Resources
Charla S. Da\'is v. Department of Human Resources
Da\id R. Rodgers v. Timmy Summer^'ille, Stonewall Jackson School
Mental Bealth/Mental Retardation
Yvonne G. Johnson v. Blue Ridge Mental Health
Department of Transportation
Gleim I. Hodge Jr. v. Samuel Hunt, Sec'y Dept of Transportelion
Glenn I. Hodge Jr. v. Samuel Hunt, Sec'y Dept of Transporation
Betsy Johnston Powell v. Department of Transportetion
Cl)de Lem Hairston v. Department of Transportetion
STATE TREASURER
Retirement Systems Division
John C. Russell v. Bd.'TrusleesrTeacheis' & State Employees' Ret. Sys.
Robert A. Slade v. Bd. Trustees /N.C. Local Gcvtl. Emp. Ret. System
Elizabeth M. Dudl^' v. Bd./Trusteesrreachers' & Slate Emplcyees"
Retirement System
91 OS? 0401
92 DSP 1463
93 OSP 1604
West
Reilly
Bee ton
03/18/94
03/21/94
93 OSP 0830
Becton
03/28/94
93 OSP 1762
Gray
03/03/94
94 OSP 0087
Chess
03/16/94
03/18/94
93 OSP 0297-'
Morrison
03/10/94
9:1
NCR
60
93 OSP 0500*"
Morrison
03/10/94
9:1
NCR
60
93 OSP 0550
Morrison
03/28/94
93 OSP 0944
Chess
02/28/94
93 DST 0164
West
03/07/94
93 DST 0785
Becton
03/18/94
9:1
NCR
68
93 DST 1474
Nesnow,
03/28/94
Consolidated cases.
107
9:2
NORTH CAROLINA REGISTER
April 15, 1994
CONTESTED CASE DECISIONS
STATE OF NORTH CAROLINA
COUNTY OF CALDWELL
IN THE OFFICE OF
ADMINISTRATIVE HEARINGS
93 EDC 0234
NANCY WATSON,
Petitioner,
V.
STATE BOARD OF EDUCATION; and
DEPARTMENT OF PUBLIC INSTRUCTION,
Respondent.
RECOMMENDED DECISION
BACKGROUND
This matter came on for hearing before Administrative Law Judge Sammie Chess, Jr. on December
15, 1993, in Lenoir, Caldwell County, North Carolina.
Petitioner filed a petition for a contested case hearing on February 26, 1993. Petitioner alleged that
the Respondent denied her application for experience credit for classroom teaching in the Caldwell County
School system from 1976 to 1991, prior to being certified as a teacher by the Respondent.
At the conclusion of the evidence, the parties were given 45 days following the receipt of the
transcript in which to file proposed findings of feet and conclusions of law pursuant to N.C.G.S. Section
150B-34(b).
APPEARANCES
S. Luke Largess
FERGUSON, STEIN, WALLAS,
ADKINS, GRESHAM & SUMTER, P. A.
Attorney at Law
700 East Stonewall Street
Suite 730
Charlotte, North Carolina
Barbara A. Shaw
Assistant Attorney General
N. C. Department of Justice
P O. Box 629
Raleigh, North Carolina
ISSUES
For Petitioner:
For Respondent:
Whether Respondent properly denied Petitioner's application for experience credit for teaching in the
Caldwell County Schools from 1976 to 1991, prior to being certified as a teacher by the Respondent.
STATUTES AND RULES INVOLVED
N.C.G.S. Sections 115C-12(9)a, 295(b), -296(c), -302(e), -325(a)(6), -326, and 16 NCAC .0301-
.0312.
9:2
NORTH CAROLINA REGISTER
April 15, 1994
108
CONTESTED CASE DECISIONS
RULING ON MOTIONS
Respondents' Motion for Summary Judgment was denied.
Based on a preponderance of the evidence admitted into the record of this case, including the
testimony of witnesses and the review of exhibits, and based on the arguments of counsel, both at this hearing
and at an earlier motion for summary judgment, the Administrative Law Judge makes the following:
FINDINGS OF FACT
1. The Caldwell County School System hired Petitioner in August 1976 to teach Art at three
elementary schools within the Granite Falls Township in Caldwell County.
2. The Caldwell County Schools paid Petitioner out of funds from the sales' proceeds of the
Granite Falls Alcohol Beverage Control store that were specially designated for use in the public school in
the Granite Falls Township.
3. For many years Petitioner was the only elementary art teacher in the Caldwell County
Schools.
4. At the time she was hired to teach art. Petitioner did not have formal training as an educator.
She had received private training from various artists and was well known locally for her art, including the
portrait of a retired principal at Granite Falls Elementary School.
5. Petitioner's impact on the children and the Caldwell County School System was of a
profoundly positive nature.
6. Since 1976, Petitioner has taught art to more than 20,000 students. Her other involvements
included designing the curriculum, planning and teaching the lessons, and providing appropriate feedback.
7. Petitioner began coursework towards a Bachelor's Degree and certification after a 1988 report
on Granite Falls Elementary by the Southern Association of Colleges and Schools (SACS), noted her lack of
certification as a program deficiency. SACS had studied Granite Falls several times since 1976, and had
approved of the art program in those prior reports.
8. Petitioner graduated magna cum laude from Lenoir Rhyne College in 1991 and applied for
and obtained a teaching certificate from the Respondents.
9. When applying for her teaching certificate. Petitioner asked for certificate credit for her
teaching experience since 1976. Every certified teacher receives an experience rating as part of her certificate.
That rating establishes the number of years of relevant work experience and determines the teachers' position
on the state salary schedule. Teachers receive a higher salary for each year of experience.
10. The Respondent denied Petitioner's request for experience credit, finding no record that she
was a "teacher" during the period of time of which she sought credit. Petitioner appealed that decision.
1 1 . Numerous witnesses testified to the fact that Petitioner has been considered a teacher by
administrators, faculty and parents of students of the Caldwell County Schools during the entire time that she
has taught Art. These witnesses included the superintendent, two assistant superintendents, three principals
and two assistant principals who had supervised her, fellow teachers, and parents of her students. All of these
witnesses testified that Petitioner was considered a teacher and had carried out the duties of a teacher since
1976 in a most exemplary manner.
12. The Respondents offered no evidence in opposition to this testimony about Petitioner's duties
and performance. By all of the evidence. Petitioner's classroom performance since 1976 had been superlative.
109 9:2 NORTH CAROLINA REGISTER April 15, 1994
CONTESTED CASE DECISIONS
13. The evidence showed that Petitioner is a naturally gifted teacher who put considerable effort
and creativity into the development of her techniques for teaching art. She has a unique ability to relate her
lessons to the individual abilities of the students. She quickly developed a teaching method in which she
integrated the student's regular academic curriculum into their art lessons.
14. At the hearing, several examples of this integrated technique were described by Petitioner
and other witnesses. One student did a geometry project in high school based on an idea she had learned
years before in Petitioner's art class.
• 15. Petitioner was observed and her teaching performance critiqued- under the standards and
guidelines devised by Respondents, pursuant to N.C.G.S. Section 115C-326, to measure teaching
performance. She received an annual evaluation on the appraisal instrument used for certified teachers and
consistently measured well on those evaluations.
16. In addition to these evaluations, three principals, two assistant principals and a supervising
teacher testified that Petitioner's performance was outstanding. Each of these witnesses had observed
Petitioner's performance. Each had been trained and qualified by the Respondents in the methods used for
evaluating teacher performance and had observed and evaluated other certified teachers as part of their job
responsibilities. Each testified that Petitioner's work as a teacher exceeded the performance standards they
had been trained to recognize.
17. Petitioner is now considered a superior teacher and the evidence shows that her abilities come
from her teaching experience between 1976 and 1991.
18. Even the physical location of her personnel file shows that she was considered a teacher by
her administrators. Her personnel file, containing her performance evaluations as well as other information,
has always been maintained in a "teacher" file drawer at her school. Other non-teaching employees' files,
including those of teacher assistants, are kept in a separate location.
19. Petitioner was considered a teacher by the Caldwell County School in other ways as well.
20. Her success with her integrated method of teaching art was recognized by the Caldwell
County Schools. She was invited to present her methods to other teachers at continuing education seminars,
for which those teachers attending received certificate renewal credits. Petitioner also presented her methods
of teaching art to a seminar of principals and other administrators of the Caldwell County system.
21. Petitioner attended seminars organized by the Caldwell County School for teachers to obtain
renewal credits. She attended these continuing education seminars like any other teacher and was listed by
the administration as a participant eligible for renewal credit.
22. Petitioner was considered a teacher by the faculty at the schools where she worked. She
performed teacher duties, both instructional and non-instructional, served on faculty committees and was
selected as her school's faculty representative to system-wide committees.
23. Respondents produced no testimony to contradict this convincing evidence that Petitioner was
considered a teacher by the Caldwell County School and that her performance exceeded the standards expected
of certified teachers. Indeed, two witnesses presented by the Respondent, Mr. Beane and Mr. Greene,
confirmed that they, too, considered Petitioner to be a teacher. Mr. Greene's children had taken art from
Petitioner and he was very pleased with Petitioner's work with his children.
24. During the period in question, 1976 - 1991, Petitioner was paid less than the salary paid to
teachers on the State's teacher salary scale.
25. Petitioner's initial salary was negotiated without reference to any salary scale in the Caldwell
County Schools as it came from an independent source of funds — the Granite Falls ABC proceeds. Petitioner
9:2 NORTH CAROLINA REGISTER April 15, 1994 110
CONTESTED CASE DECISIONS
was paid less than other teachers but more than teacher assistants, except for the years immediately preceding
her certification. In those years, the funding for her position no longer came from Granite Falls ABC funds,
which had diminished when other ABC stores opened around Caldwell County; she was paid instead on the
teacher assistant scale out of funds in the regular school budget.
26. At least three vocational teachers in the Caldwell County Schools are certified and paid by
the state as teachers, even though they do not have college degrees. These three teachers have vocational
certificates on the basis of having four years experience in the building trades.
27. In addition to having a certificate based on work experience, these three teachers have each
received 10 to 12 years of certificate experience credit from Respondents based on employment in the building
trades as masons.
28. Respondents have other certification programs in which individuals with less than a four year
degree are certified to teach in certain subject areas and receive experience credit for work performed without
a college degree. JROTC instructors, for example, are certified regardless of level of education and receive
experience credit for any classroom teaching experience in the military, without regard to certification.
29. The Respondents also awarded a lateral entry teaching certificate in Art to a Caldwell County
teacher with a college degree in Psychology. That teacher was certified to teach Art without an academic
background in Art.
30. Respondents also award experience credit for work as a Teacher's Aide performed after being
certified as a teacher.
3 1 . Petitioner's duties and responsibilities were those of a teacher, and exceeded the duties and
responsibilities of a Teacher's Aide.
After observing the witnesses as they testified and listening to the evidence presented, the undersigned
administrative law judge makes the following additional findings of fact:
1 . Petitioner exhibited extraordinary teaching qualities and abilities during the period 1976-1991 .
2. Petitioner was held in the highest esteem as a teacher among parents, teachers and
administrators.
3. Petitioner is an unusually gifted teacher and is a credit to teachers everywhere.
Based on the foregoing Findings of Fact, the Administrative Law Judge makes the following:
CONCLUSIONS OF LAW
1 . This case is properly before the Office of Administrative Hearings, as Petitioner has presented
a legitimate contested case issue of whether Respondents have acted improperly in denying her application for
experience credit.
2. Petitioner has met all of the procedural requirements for the Office of Administrative Hearings
to review her contested case.
3 . The feet that Petitioner was not certified to teach or paid on the teacher salary scale between
1976 and 1991 is not dispositive for the question of whether she should receive credit now for that experience.
4. It is clear that Petitioner succeeded as a teacher by the Respondents' own standards for
measuring the performance of certified personnel. The evidence of the quality of her work as a teacher since
1976 is overwhelming and uncontradicted.
Ill 9:2 NORTH CAROLINA REGISTER April 15, 1994
CONTESTED CASE DECISIONS
5. From that convincing evidence, this undersigned administrative law judge concludes as a
matter of law that Petitioner was employed as a teacher from 1976 - 1991. Respondents' arguments about
Petitioner's salary, the absence of a college degree or certification do not persuade this Court that Petitioner
was not a teacher during the period in question. It is accepted that Petitioner was not certified and thus was
not paid as a certified employee; but she was, indisputably, an eff'ective, accomplished teacher.
6. We then turn to the question of whether Petitioner should receive certificate credit for her
work as a teacher from 1976 - 1991.
7. Respondents have the discretionary authority to award Petitioner certificate experience credit.
No law expressly prohibits awarding Petitioner experience credit for her work as an art teacher.
8. The issue is whether Respondents' denial of experience credit is reasonable related to the
purposes which experience credit serves, Guthrie y^ Taylor . 279 N.C. 703, 185 S.E.2d 193 (1971).
9. Petitioner's teacher experience does not fit within any of Respondents' existing categories for
experience credit that might apply to vocational teachers, JROTC instructors or lateral entry teachers. But
the Court is convinced that awarding Petitioner experience credit would serve the same purpose as that served
by awarding credit under these other programs.
10. The primary purpose of experience credit is to pay more experienced personnel a higher
salary than less experienced personnel. This salary difl^erential reflects the feet that experienced personnel
are more valuable to a school system.
1 1 . Petitioner is a valuable, experienced educator. It would be reasonable for her salary to reflect
that experience.
12. Experience credit is available to certain teachers for work experience other than certified
teaching. This policy reflects the feet that this prior non-certified experience prepared the employee for
his/her present role in the classroom and increased that person's ability and value as an educator.
13. Petitioner's experience in the classroom from 1976 - 1991 prepared her for her present role
as much as, if not more than, any form of work experience creditable under these other plans.
14. The policies served by awarding credit in these other categories is also served by awarding
Petitioner credit. This conclusion is supported by the feet the Petitioner's experience has been closely
monitored and evaluated by personnel, trained by Respondents to measure teacher performance. There is no
question about the quality or nature of the experience for which she seeks credit.
15. Given Petitioner's proven record of accomplishment in the classroom, the Court finds that
awarding Petitioner experience credit would serve the interests of the citizens of North Carolina in promoting
quality in public education; and would serve those interests as strongly as any of the policy reasons that
support awarding certificate credit under these other programs.
16. Respondents argument that awarding Petitioner experience credit would condone her
"unlawful" employment as a non-certified teacher is not persuasive.
17. If her employment was unlawful because she was not certified, her employer is responsible
for that action, not Petitioner. Denying her credit has no efl"ect on the employer. As a remedial justification,
denial of credit is illogical and counter-productive.
18. By good fortune, the Caldwell County Schools found a gifted and talented teacher. Petitioner
has proven herself as an exemplary educator. The Respondents should recognize what she has accomplished
for the students of Caldwell County and support her efforts.
9:2 NORTH CAROLINA REGISTER April 15, 1994 112
CONTESTED CASE DECISIONS
19. Petitioner has performed under the watchful eye of persons trained and certified by
Respondents to supervise teachers and to use objective standards in measuring performance. The Respondents
should recognize that Petitioner has demonstrated her considerable skills and that she has come by them
through her experience. Instead, Respondents censure her for exhibiting those skills prior to being certified.
20. The Administrative Law Judge finds Respondents denial of Petitioner's application for
experience credit to be an oppressive and manifest abuse of its discretionary authority, Pharr v^ Garibaldi .
252 N.C. 803, 1 15 S.E.2d 18 (1960), that is not reasonable related to the purposes of experience credit.
21. It is beyond cavil that Petitioner is a better teacher now because of her teaching experience
between 1976 and 1991; it is irrational that her certificate does not reflect that established, irrefutable feet.
Based on the foregoing Findings of Facts, Conclusions of Law, and a preponderance of the substantial
evidence in the record, the Administrative Law Judge makes the following:
RECOMMENDED DECISION
It is recommended that Petitioner receive the following relief from Respondents:
a. that comparable to the credit that others teaching without a college degree have received from
Respondents, that Petitioner receive 1 1 years of experience credit for her 15 years of teaching
from 1976 - 1991;
b. that her salary be adjusted to reflect that experience increment, retroactive to May 1991,
when she applied for the experience credit; and
c. that she be awarded the cost of this action, including a reasonable attorneys fee.
ORDER
It is hereby ordered that the agency serve a copy of the final decision on the Office of
Administrative Hearings, P.O. Drawer 27447, Raleigh, N.C. 27611-7447, in accordance with North Carolina
General Statute 150B-36(b).
NOTICE
The agency making the final decision in this contested case is required to give each party an
opportunity to file exceptions to this recommended decision and to present written arguments to those in
the agency who will make the final decision. G.S. 150B-36(a).
The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and
to furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings.
The agency that will make the final decision in this contested case is the State Board of Education.
This the 23rd day of February, 1994.
Sammie Chess, Jr.
Administrative Law Judge
113 9:2 NORTH CAROLINA REGISTER April 15, 1994
CONTESTED CASE DECISIONS
STATE OF NORTH CAROLINA
COUNTY OF GUILFORD
IN THE OFFICE OF
ADIVUNISTRATTVE HEARINGS
93 CPS 0801
JAMES HUGH BAYNES,
Petitioner,
V.
N.C VICTIMS COMPENSATION
COMMISSION,
Respondent.
RECOMMENDED DECISION
This contested case was heard on December 20, 1993 in High Point, North Carolina.
On December 23, 1993, Petitioner wrote the Administrative Law Judge calling attention to the
Application he had filed with the Crime Victims Compensation Commission. The parties had stipulated that
the Application was genuine and, if relevant and material, could be received into evidence. The Application
was not tendered into evidence by either party.
The Administrative Law Judge, on his own motion, re-opened the record on January 25, 1994 and
ordered the parties to respond to questions set forth in the order re-opening the record. The parties responded
and the record closed on February 10, 1994. As a result of the parties' representations in the letters, the
Application filed by Petitioner with the Commission was added to the record.
APPEARANCES
Petitioner appeared qto se.
Respondent was represented by Associate Attorney General Robert T. Hargett.
ISSUES
Did the Commission err by foiling to compensate Petitioner for the following:
1.
a. Future Economic Loss;
b. Replacement Services;
c. Physical Therapy?
BURDEN OF PROOF
The burden is on Petitioner to prove by the greater weight of the substantial evidence that the
Commission erred by failing to compensate Petitioner for claims within the three categories set forth
hereinabove.
WITNESSES
The following testified for Petitioner:
James Hugh Baynes - Petitioner
9:2
NORTH CAROLINA REGISTER
April 15, 1994
114
CONTESTED CASE DECISIONS
The following testified for Respondent:
Nancy Miller - Investigator, North Carolina Crime Victims Compensation Commission
EXHTRITS
The following exhibits were received into evidence:
PI - Physician's notes from Guilford Orthopaedic and Sports Medicine Center.
P2 - Physician's notes from Guilford Orthopaedic and Sports Medicine Center.
P3 - Letter from Dr. Gerald Plovsky of the Internal Medicine Training Program
at Moses H. Cone Memorial Hospital, Greensboro.
Application Form promulgated by the North Carolina Department of Crime
Control and Public Safety, Crime Victims Compensation Commission - filed
by Petitioner on December 31, 1991.
STIPULATIONS
1 . It is stipulated that all parties are properly before the Office of Administrative Hearings and that the
Office of Administrative Hearings has jurisdiction of the parties and subject matter.
2. It is stipulated that all parties have been correctly designated. It is further stipulated that there is no
question as to misjoinder or nonjoinder of parties.
3. The Petitioner filed a timely Application for Compensation with the North Carolina Crime Victims
Compensation Commission on December 31, 1991.
4. The Petitioner's claim was subsequently paid by the Respondent.
Based upon the substantial evidence admitted, the undersigned makes the following:
FINDINGS OF FACT
1 . Petitioner James Hugh Baynes (tereafter "Baynes") was the victim of a criminal assault on December
8, 1991.
2. As a result of the assault, Baynes suffered a severely comminuted displaced segmental fracture of the
shaft of the tibia and an oblique fracture of the proximal fibula. On the same day as the assault, Baynes was
placed under spinal anesthesia and an orthopaedic surgeon, David Dye, inserted a rod into Bayne's right tibia.
The rod was locked into place with screws.
3. On September 16, 1993, Dr. Dye wrote that the comminuted fracture of the right tibia was healed
and that Baynes suffered a fifteen percent (15%) permanent, partial disability to the right tibia.
4. On October 4, 1991, two months prior to his assault, Baynes had left his job due to pre-existing
medical conditions. Baynes has not been employed since October 4, 1991.
5. Baynes filed an Application with the Respondent (hereafter "Commission") on December 31, 1991
seeking compensation for injuries suffered during the criminal assault.
6. As a result of the application, the Commission has paid Twelve Thousand Two Hundred Twenty-one
115 9:2 NORTH CAROLINA REGISTER April 15, 1994
CONTESTED CASE DECISIONS
and One Hundredth Dollars ($12,221.01) to medical care providers on Baynes' behalf to defray expenses
Baynes incurred as a result of the criminal assault. No amounts were paid for physical therapy.
7. Baynes was living with his parents at the time he was assaulted on December 8, 1991 and has been
living with them since that time. Prior to his assault, Baynes helped by keeping the house up, doing yard
work and general house maintenance. Since Baynes' assault, much of that work is not being done or is being
done by friends or Baynes' brother-in-law.
8. Baynes' claim for Replacement Services is based upon his inability to perform the services for his
parents detailed in Finding of Fact #7.
9. "Replacement services loss" is defined by G.S. 15B-2(12) to be:
"expenses reasonably incurred in obtaining ordinary and necessary services
in lieu of those the injured person would have performed, not for income
but for the benefit of himself or his family, if he had not been injured."
10. The kinds of services Baynes had been performing for his parents are compensable under G.S. 15B-
2(12).
1 1 . There is no evidence that the friends or brother-in-law are charging anything to perform the services.
12. Baynes states in the Application he filed on December 31, 1991, that he is "UNEMPLOYED".
13. "Future economic loss" is not defined by the Victims Compensation Act. Baynes is claiming,
however, that he has suffered "Economic loss" as that term is defined by G.S. 15B-2(10).
"Economic loss" means, "... economic detriment consisting only of
allowable expense, work loss, and replacement services loss."
14. "Work loss" is defined by G.S. 158-2(14) to mean,
"... loss of income from work that the injured person would have performed
if he had not been injured "
15. Baynes has not lost income from work he was performing when he was criminally assaulted and
injured.
16. The Application filed by Baynes on December 31, 1991 states, in the part relevant to this contested
case:
IV. MEDICAL EXPENSES INFORMATION
A. Brief description of injuries: "Suffered Fractures of Different Types in 6 Separate
Locations of the Lower Right Leg (Between The Knee and the Ankle)"
C. Will victim be needing additional treatment?
"YES"
If yes, describe: "Possible Physical Therapy, Orthopaedic Surgeon Will Be
Removing a Steel Rod and Screws, Pins Etc. (1 Yr. Aprox.)"
17. The Commission took the position in the hearing of this contested case that amounts could not be paid
for physical therapy because physical therapy was not prescribed during the first year after Baynes' criminal
assault. The Commission took the position that if the physical therapy had been prescribed during the year
9:2 NORTH CAROLINA REGISTER April 15, 1994 116
CONTESTED CASE DECISIONS
following Baynes' injury, the expenses would have been compensable. No administrative rule or statute was
cited for the position.
18. G.S. 15B-1 1 (a)(2) provides that:
"An award of compensation will be denied if:
The economic loss is incurred after one year from the date of the criminally
injurious conduct that caused the injury or death for which the victim seeks
the award;".
19. No prescription was written for physical therapy. Baynes testified that his orthopaedic surgeon
recommended physical therapy but did not prescribe it because Baynes had no medical insurance.
20. In the letter re-opening the record in this case on January 25, 1994, the Administrative Law Judge
ordered the Commission to state whether its position regarding compensation for physical therapy and surgical
expenses had changed since the hearing in light of Baynes' having written in his application that he would be
needing additional surgery for the removal of the steel rod in his leg and possible physical therapy.
21. The Commission responded in a letter filed February 4, 1994 that it did not amend its position
regarding compensation for physical therapy because it had not been contracted for nor prescribed by Baynes'
doctor within the one year period. The Commission further stated that it believed it had paid for the surgical
expenses related to the removal of the rod from Baynes" leg, but that if those expenses had not been paid, the
Commission would make the payments since it had been placed on notice of the expenses within the one year
period. The Commission further stated that it would be necessary for Baynes to submit any medical bills
before payment could be evaluated.
22. On February 4, 1994, Baynes filed a letter in response to the Administrative Law Judge's letter.
Baynes wrote in the letter that he had incurred a cost of Eight Hundred Sixty-seven Dollars ($867. (X)) from
Guilford Orthopaedic and Sports Medicine Center on July 14, 1993 to remove the rod. Baynes also wrote
that he had out of pocket expenses of One Hundred Twenty-six and Twenty Hundredth Dollars ($126.20) for
prescriptions written by his surgeon.
23. Baynes stated further in his letter that,
"Because a decision on my claim was not made until after one year from the
date of the crime, I was denied physical therapy which I am entitled to
under G.S. 15B-2(1). Due to the severity of the injury, it was very impor-
tant that I received the rehabilitation directly after each surgical procedure. "
(Emphasis added).
24. Baynes filed his application for compensation on December 20, 1991. The Commission initially
approved compensation to Baynes in the amount of Seven Thousand Nine Hundred Fifty-eight and Fifty-nine
Hundred Dollars ($7,958.59) on December 15, 1992. The Commission supplemented the compensation on
May 27, 1993 in the amount of Four Thousand Two Hundred Sixty-two and Forty-two Hundred Dollars
($4,262.42).
ORDER
Pursuant to G.S. 150B-33(l3), and in my discretion, it is hereby ORDERED that the letter from the
Administrative Law Judge dated January 25, 1994 and the letters in response from the parties filed February
4, 1994, be placed into the record of this contested case.
IT IS SO ORDERED.
Based on the foregoing, the undersigned makes the following:
117 9:2 NORTH CAROLINA REGISTER
CONTESTED CASE DECISIONS
CONCLUSIONS OF LAW
1 . From the date Baynes applied for Victims Compensation, the Commission has been on notice that
Baynes anticipated incurring expenses for surgery and physical therapy that, but for the fact the expenses
would be incurred more than one year after the criminal attack that caused the injury to Baynes, would qualify
as "economic loss" compensable pursuant to the North Carolina Crime Victims Compensation Act.
2. Pursuant to G.S. 1 SOB- 1 1(a)(2), an award of compensation will be denied if the economic loss is
incurred after one year from the date of the criminally injurious conduct that caused the injury for which a
victim seeks compensation from the Commission.
3. Baynes did not incur an economic loss for physical therapy within one year of the date of the
criminally injurious conduct that caused his injury.
4. TTie Commission has taken the position in this case that, because it was on notice from the date that
Baynes applied for Victims Compensation that surgery may be required beyond the one year period, it will
pay for such surgery if it receives bills in order to properly evaluate the claim.
The Commission has also been on notice from the date that Baynes applied for Victims Compensation that
physical therapy may be necessary after the rod and pins were removed which would be after one year from
the date of the criminally injurious conduct. It is arbitrary and capricious for the Commission to pay for the
surgery because it was on notice it may occur more than one year after the criminally injurious conduct and
fail to pay for the physical therapy that may be prescribed to follow that surgery.
Based on the foregoing, the undersigned makes the following:
RECOMMENDED DECISION
TTie Commission should act pursuant to 14A NCAC 11 .0502(d) to reopen the investigation of
Baynes' claim. The Commission should set a reasonable period for the receipt of evidence of "allowable
expenses" related to the surgery to remove the rod and pins from Baynes' leg and for the receipt of a
prescription for physical therapy. The Commission should require evidence satisfactory to itself that the
prescription is written because it is medically necessary and was contemplated as a possibility from the date
of the application in this case.
If a prescription is presented, it may be for more therapy than would have been required if Baynes
had been prescribed physical therapy contemporaneously with the surgery installing the rod and pins. If so,
the Commission should require the prescription to delineate how many hours of physical therapy relates to
the second surgery and provide compensation for only that amount.
ORDER
It is hereby ordered that the agency serve a copy of the final decision on the Office of Administrative
Hearings, P.O. Drawer 27447, Raleigh, N.C. 2761 1-7447, in accordance with North Carolina General Statute
150B-36(b).
NOTICE
The agency making the final decision in this contested case is required to give each party an
opportunity to file exceptions to this recommended decision and to present written arguments to those in the
agency who will make the final decision. G.S. 150B-36(a).
9:2 NORTH CAROLINA REGISTER April 15, 1994 118
CONTESTED CASE DECISIONS
The agency is required by G.S. 150B-36(b) to serve a copy of the final decision on all parties and to
furnish a copy to the parties' attorney of record and to the Office of Administrative Hearings.
The agency that will make the final decision in this contested case is the N. C. Crime Victims
Compensation Commission.
This the 28th day of March, 1994.
Thomas R. West
Administrative Law Judge
119 9:2 NORTH CAROLINA REGISTER April 15, 1994
NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM
1 he North Carolina Administrative Code (NCAC) has four major subdivisions of rules. Two of these,
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TITLE DEPARTMENT LICENSING BOARDS CHAPTER
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Acupuncture
1
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Architecture
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Auctioneere
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Commeice
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*21
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Veterinary Medical Board
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Note: Title 21 contains the chapters of the various occupational licensing boards.
9:2
NORTH CAROLINA REGISTER
April 15, 1994
120
CUMULATIVE INDEX
CUMULATIVE INDEX
(April 1994 - March 1995)
Pages Issue
1 - 75 1 - April
76 - 122 2 - April
Unless otherwise identified, page references in this Index are to proposed rules.
COMMERCE
Energy Division, 4
ENVIRONMENT, HEALTH, AND NATURAL RESOURCES
DEM/ Air Quality, 80
Environmental Management, 81
NPDES Permit, 3
Wildlife Resources Commission, 38, 42, 84
FEVAL DECISION LETTERS
Voting Rights Act, 2
GOVERNOR/LT. GOVERNOR
Executive Orders, 1
HUMAN RESOURCES
Child Day Care Commission, 10
Facility Services, 4
Mental Health, Developmental Disabilities and Substance Abuse Services, 13, 24, 36
INDEPENDENT AGENCIES
State Health Plan Purchasing Alliance Board, 99
INSURANCE
Multiple Employer Welfare Arrangements, 76
Special Services Division, 76
LABOR
OSHA, 77
LICENSING BOARDS
Acupuncture Licensing Board, 44
Landscape Architects, Board of, 95
Nursing, Board of, 45
Plumbing, Heating and Fire Sprinkler Contractors, Board of, 96
Practicing Psychologists, Board of, 97
Professional Counselors, Board of Licensed, 50
LIST OF RULES CODIFIED
List of Rules Codified, 53
121 9:2 NORTH CAROLINA REGISTER April 15, 1994
CUMULATIVE INDEX
TRANSPORTATION
Highways, Division of, 85
Motor Vehicles, Division of, 89
9:2 NORTH CAROLINA REGISTER April 15, 1994 122
NORTH CAROLINA ADMINISTRATIVE CODE
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